It is now a social norm to post about your life and share your opinions and stories on social media platforms, particularly Facebook, Instagram and Twitter. Unfortunately, placing your life, private affairs and images in the public arena is risky business. The growing dominance of social media in society now means that the content posted on these social platforms is becoming an important part of evidence used in Court.
In a recent 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 which were inconsistent with her claim.
In family law matters, Facebook posts and private messages between parent and child have been used to assist the Court in determining whether and under what circumstances, a child should spend time with a parent.
However, it is not all doom and gloom as in some cases, social media evidence has positively impacted users, for example, in a recent employment law case, a company used an employee’s Facebook posts containing comments against his managers, as grounds for his dismissal. The employee claimed this was unfair dismissal. After a lengthy legal battle, the Court held that in this instance, the employee had been unfairly dismissed.
Notwithstanding these examples, the credibility of and weight given to social media posts and the limits of the jurisdiction of their use is still in review. This is further complicated by the fact that rules and laws regarding social media are still evolving and cannot keep up with the ever growing and changing world of social media.
Use of Facebook, Twitter or Instagram posts as evidence for example, is complicated by the fact they can be edited and deleted by the user. Some cases have been cautious in their approach to allowing the evidence due to privacy and other issues. Some cases have taken the approach that social media content is to be treated the same as any other documentary evidence. For example, in the Federal Court case of Comité Interprofessionnel du Vin de Champagne v Powell  FCA 1110 at , Beach J can be quoted stating ‘the existing rule of procedure and evidence can be applied and they are flexible enough to deal with this social media during discovery.’
Social media in the Courts is therefore an evolving topic however currently appears that the Courts will allow social media as evidence, as determined on a case by case basis.
How Social Media is being used by the Courts
Facebook is now being used as a tool to affect the service of documents. Where a person appears to have an active Facebook account and the plaintiff is able to verify the account belongs to the correct person, the Courts are now allowing, upon application, for the plaintiff to serve documents electronically via private message to the defendant’s Facebook account. This in itself is demonstrating an acceptance of social media as a credible form of communication by the Courts.
As the Federal Court has said “we cannot put the social media genie back in its bottle. Social media is now ingrained in the daily life of the community.” Social media is now seen as a platform used for the legitimate expression of opinion and communication and for this reason, your social media account can and will be used as evidence which could ultimately affect the outcome of your case.
Written by Amelia Hatton