In SLF Associates Inc v. HSBC (UK) Bank Plc et al [2021] EWHC 5, a decision rendered by the England and Wales High Court, the Court admonished an individual for circulating an unauthorized screen shot taken in the course of virtual court proceedings.

The caution was based on a provision of the UK Courts Act that makes it an offence to record or transmit court proceedings without the court’s permission.

How would this be handled in Alberta?

General Guidance

Before COVID-19 forced changes to the way legal proceedings are conducted, the Alberta Courts published a Public and Media Access Guide directing that,

Cameras or electronic recording devices of any kind may not be used in courthouses or courtrooms without prior approval. Requests for permission to use a camera or other video or audio recording device may be made to the local court administrator, who will contact the appropriate authority for a decision.

The Court of Appeal supplemented this guidance with a Policy on the Use of Electronic Devices in Courtrooms directing that “members of the public are not permitted to use electronic devices in the courtroom.” For counsel, it stipulated that “lawyers must not use electronic devices to audio record court proceedings’ and that ‘electronic devices must not be used to video record or take photographs.”

The Court of King’s Bench did the same with an Etiquette Guide for Online Hearings, which confirmed that this approach applies to online proceedings as well as those in-person:

All policies with respect to the use of recording equipment in courtrooms apply to Online Hearings. Recording, live streaming or broadcasting the video or audio of any Online Hearing by Counsel, parties, witnesses, any member of the public or the media is strictly prohibited.

Unless otherwise provided in this Notice, Online Hearings are governed by the same set of expectations and rules as in-person hearings. Counsel, parties, members of the media, and others who participate in Online Hearings are expected to conduct themselves as though they are physically appearing in a courtroom.

In Provincial Court, a Conduct Guide for Remote Appearances directs that recording, live streaming or broadcasting the video or audio of any remote hearing is strictly prohibited.

Finally, the Law Society of Alberta’s Code of Conduct (Rule 7.2-4) states “a lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.”

All of these restrictions remain in effect today, meaning that taking screenshots and recordings of remote proceedings is prohibited unless the Court grants specific permission to do so. This applies to in-person and remote proceedings.

Undertakings Not to Record Proceedings

In 2020, the Court of Appeal issued a Notice – COVID-19 – Electronic Hearing Procedural Information requiring all non-lawyer participants in electronic hearings, including self-represented parties, to sign an undertaking in which they agree not to record and rebroadcast court proceedings. The undertaking appears on the Court of Appeal website when logging into live proceedings:

BY JOINING THIS PROCEEDING, I AGREE TO THE FOLLOWING UNDERTAKING:

I understand that, in keeping with the open-court principle of Canada’s justice system, I can view this proceeding but, to protect the integrity of Court proceedings, I undertake and agree not to record or rebroadcast in any manner the Court proceeding. I acknowledge that if I breach this promise and agreement, I may be subject to legal sanction, including proceedings for civil contempt of court.

The Court of King’s Bench’s Etiquette Guide similarly requires clients and self-represented parties to sign an Undertaking and Agreement of Non-Lawyer in which they commit to not recording or rebroadcasting their court proceedings.

Counsel are not required to provide similar undertakings when appearing in court, as they are bound by their own rules of conduct.

Other Issues

In Kaushal v. Vasudeva, 2021 ONSC 440, a party secretly included his wife and son in the boardroom when he was giving evidence by video during discovery. During his testimony, his family members were gesturing to him and influencing his responses.

Under Ontario’s civil procedure rules and the inherent jurisdiction of the court, the court found an abuse of process and struck the offending party’s affidavit from the court record. The court was not asked to remove the party’s lawyer from the file, but counsel had been dishonest and the court stated that it would have given serious consideration to removing the lawyer from the file if that had been requested. It is not hard to imagine that these remedies would be possible in Alberta as well.

Finally, always be on guard for the presence of publication bans since these impose further obligations on the use and dissemination of information revealed in proceedings.

Conclusion

Virtual examinations and trials afford great opportunities to deliver legal services in an efficient, client-centered way. Lawyers need to be mindful of their ethical obligations during these proceedings.

Even if your video conferencing software has a recording feature, this does not authorize you to record or take screen shots of remote court proceedings without the court’s express permission. In addition, failing to follow procedural and ethical rules may result in parties facing court sanctions that prejudice their litigation.