Posted on September 13, 2022
Rebecca Cameron
The use of social media platforms by users in Australia is prolific. Facebook is reported to have 2.91 billion monthly active users, of which 19.57 million are Australian and accounts for 7.4% of our entire population.
Often forgotten is that, Facebook not only ‘helps you connect and share with the people in your life’ but also with the ‘world around you’, including the court room.
While your Facebook and social media accounts may be set to private, the way in which you interact with other users may mean your activities are capable of entering the public domain. It should also be noted that even with strict privacy settings, your personal information may still be discoverable in litigation.
Rules around discovery of evidence and social media
So how can your information contained on social media be used in litigation?
The threshold question of whether social media information is discoverable, is whether it is relevant to the proceeding. In Victoria, s 55 of the Evidence Act 2008 (Vic) provides that evidence is relevant if it is capable of ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.’
What evidence might you provide your opponent?
Commonly, Facebook contains information on users’ location, daily activities, personal relationships and opinion and photographs which may provide the record equivalent of a ‘day in the life’. All of the above may be discoverable and can often be overly helpful in proving your opponent’s case.
Take for example, a personal injury claim in the case of Toskas v Waldron [2020] SADC 76. A claim for damages for personal injuries in a work accident while working as a traffic controller failed due to evidence introduced from his personal social media account. Toskas claimed that he suffered and continued to suffer, loss of enjoyment of the amenities of life and total incapacity in relation to his pre-accident employment, which was refuted by evidence of his social media posts and documents showing him engaging in domestic, household, recreational, physical sport or social activities or undertaking a holiday, all relevant evidence.
In the family law context, social media information can be used against you in a variety of ways, including as evidence for drug and alcohol abuse, extravagant lifestyle, infidelity and difficulties maintaining a co-parenting relationship. Importantly, private messages communicated on social media may also be discoverable, and may be used to determine key family arrangements such as custody of children.[1]
Your social media usage may also have ramifications for your employment, with the Fair Work Commission seeing an increasing number of unfair dismissal claims revolving around social media content of employees who may not necessarily be posting content about their workplace.
Destruction of Social Media Evidence
While it may be tempting as a litigant to delete either permanently or temporarily your social media posts, deleting an Instagram image, tweet or editing a Facebook status may not be as innocuous as you think.
Pertinent for individuals, section 254(1) of the Crimes Act 1958 (Vic) prescribes severe consequences including imprisonment against a party who deliberately destroys discoverable material. Social media information can be as relevant as other evidence, and its destruction may attract serious consequences including the striking out of claims.
While social media is seemingly a natural part of everyday life, let this serve as a timely reminder to be conscious of your privacy settings and the way in which you interact with social media platforms in general, but to also be especially wary of your usage when engaged in litigation.
[1] Marbow v Marbow [2012] FAMCA 24
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