Posting about your life, stories and opinions on Facebook, Instagram, or Twitter has become commonplace. Unfortunately, most people do not understand the potential repercussions of placing their life, private affairs and images in the public arena. Given social media’s growing dominance in our daily lives, it is only natural that social platforms have become an integral part of ‘discovery’ and used as evidence in our courts.
However, the credibility and weight of social media posts as evidence in court is still a topic of debate. There are not a lot of rules present today that completely set the limitations or the jurisdictions of how social media can be used as evidence in court. In fact, laws covering social media regulation and limitations are still being drafted, and not fast enough.
Social media channels are growing and evolving faster than we can ratify our laws. Users can easily edit and delete their posts, which further complicates the issue.
A speech entitled Social Media—Challenges for Lawyers and the Courts by former Judge Justice Steven Rares, published in the Digital Law Library of the Federal Court of Australia in 20 October 2017 tackles issues on how social media is used in court and how it affects court decisions.
How will the interactive nature of social media affect the discourse between the court and the litigants? Will social media require courts to take court ‘user’ satisfaction into account in the provision of justice, and how is the dissemination of judgements on social media affecting public perceptions of traditional rules such as the doctrine of precedent?
– Judge Judith Gibson, of the District Court of New South Wales
(Social Media – Challenges for Lawyers and the Courts, No. 16)
In a case in New South Wales, a “claim for damages for psychological injury against a driver,” was overturned because evidence from the applicant’s Facebook and Twitter account divulged her activities after the collision, which included going on a holiday, having a “great night with friends”, and presenting a paper for International Women’s Day (Tweeters, Posters and Grammers Beware: Discovery and Social Media Evidence, No. 20), which were inconsistent with her claim.
In Victoria, social media posts reflecting “prolific conversations” as well as surveillance films depicting an appellant “socialising and walking without a limp,” led the jury to conclude the inconsistency of the appellant’s claim of “brain injury and depression”, making his claim invalid (No. 21).
In determining the best interest of the children, private Facebook messages between the children and their mother were examined by the court to “determine whether, and in what circumstances, the children should spend time with their mother” (No. 22). Often, litigants involved in cases geared towards proving infidelity or misconduct would ask their former partners to disclose access to their social media accounts and instant messaging applications to help support their claim. In the famous Ramazan Acar vs The Queen case back in 2011, where a father murdered his daughter to get back at his former wife, the court examined the Facebook page of the father, along with his text messages to his former wife, to determine claims towards personality disorder amidst the respondent’s admission of the crime committed.
In the case of Glen Stutsel vs Linfox, the company used the derogatory Facebook posts of Mr Stutsel against his managers as grounds for his dismissal. The applicant claimed unfair dismissal and after three trials, the court upheld their finding of unfair dismissal against Linfox.
Courts in Australia will fashion orders for discovery to suit the particular issues in the case at hand and the purpose of discovery. While the discovery of social media records is unique, the existing rules provide the courts with the discretion to take into account the complexities of social media evidence… Indeed, courts in Australia have endorsed a flexible rather than prescriptive approach to discovery to facilitate the making of orders to best suit each case.
-Tweeters, Posters and Grammers Beware: Discovery and Social Media Evidence, No. 31
So in conclusion, YES, social media posts have been and can be used as evidence in court—provided that discovery of the proceedings of the hearing operate under the Practice Notes that the Chief Justice advised on the court. This includes the limitations on the scope from which evidence can be taken from, mainly on the “time, cost and burden” of providing each discovery that will “yield relevant information” (No. 25).
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