Capturing and Preserving Evidence in Defamation Claims

10 September, 2018

One of the most common mistakes made in any dispute is to fail to Bird with fake newscapture and preserve evidence at an early stage.


Unless you’ve been involved in litigation before, capturing evidence at the outset might not be something that immediately comes to mind as being a critical first step.  However if the opportunity to capture important evidence is missed, a claim may be fatally harmed.


Capture Early

Seeking legal advice at an early stage is always recommended as it can help shape a robust dispute resolution strategy, but don’t let this delay you from gathering evidence. At any moment critical evidence may be removed, edited or deleted, particularly if the other side is aware of a dispute.


An example: Defamation on Twitter

If you have been defamed on Twitter, the initial priority may be a takedown of the offending comment(s). However, if you fail to capture and keep a copy of the comment before a takedown, it may be difficult or impossible to pursue a claim for damages. If a contract or job is lost as a result of the comment, for example, a claim for damages may be particularly important.


Therefore, before any contact is made with the author of the comments, or any takedown request is made to the platform, it is recommended that the offending comments are captured and preserved as dated screenshots.


Practical Tips: Capturing and Preserving Evidence

Screenshots are good evidence of content appearing on websites and social media.


When taking a screen shot try to include the date and time information as it appears on the main page of your computer’s operating system (Google should help you find the answer how to do this depending on your particular device if you’re unsure).


You may also wish to email the screenshots to your lawyer/accountant to ‘date stamp’ and preserve the evidence.


To capture video content, you may need to seek IT support if it is not obviously capable of being downloaded / stored.


A quick and easy low tech method of capturing the material can be to take a photograph of the screen or even of a video playing.


Evidence can make or break a claim (whether or not it goes to court). It also plays a key role in both the assessment of damages and the ability to secure other remedies from the Court, such as final injunctions, which may be critical to stopping further harm.  


If you take the time to capture and preserve evidence then you will make your lawyer’s job a lot easier.


For further information or advice on this topic then please visit our Protecting your Reputation webpage.