Considering the context before commenting on the content

We live in a world where it is necessary to advise people not to drink the hand sanitiser, and where cautious lawyers make you put up notices warning that the water coming from a hot tap may be hot.

In that spirit, I have put a note at the top of my two posts (here and here) about the photographs of President Trump “working” in hospital:

This and its accompanying article are about the probability that the Trump hospital pictures were taken on the date and at the time appearing from the published screenshots of the EXIF viewer. This shouldn’t need saying. but they are not advanced treatises, still less advice, on all the technical and legal issues which can arise when handling electronic data. For that you will want to take specialist advice.

My second post was called Irritating interjections from LinkedIn commentators with nothing worth adding to the subject. The “irritating interjections” were a kind of whataboutery, equivalent to:

Your article about rowing boats on the pond failed to mention the risk of hitting an iceberg at night in mid-Atlantic

or

Your article on walking in the park made no reference to the crampons, flares, ropes, walking boots, weatherproof clothing and other equipment needed for outdoor activities.

The original commentators have been joined by another, who said:

Is this forensic evidence substantiated through the courts? If that is true fine, otherwise I would advise to include the expertise required to publish this article.

Well no, I must admit that I did not seek judicial approval before assessing whether, on the balance of probabilities, a reputable news agency falsified the dates on some pictures taken at a Trump photo-op. I did, however, say expressly in the first article that “No-one expects every lawyer to be expert in these things”, and talked of “…a kind of smell test to decide what may need closer examination”. The example set out in the second article used desktop applications like Lightroom and Apple Photos, and added that “It is certainly true that EXIF data can be altered”. Do I really need to add more?

It is helpful to keep a sense of context and proportionality. The note added to the top of my articles aims to head off anyone else who finds it difficult to differentiate between the functions of a blog post on the one hand and a formal advice or report on the other.

None of this is really worth yet a third article. What is, perhaps, worth saying is that my self-appointed role is mainly to tip people off about things they may overlook. I summarise cases, but do not give legal advice in my blog intended to be relied on without case-specific facts and full instructions given to a lawyer retained on the case. I point to technical solutions, usually with the suggestion that you go and see some of them to find out if they meet your requirements.

Context matters. Proportionality colours everything. Don’t drink the hand sanitiser.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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