The Legal Risks of Social Networking

The Legal Risks of Social Networking
 
Many people are really enjoying posting information about themselves with their friends on social websites such as Facebook and Twitter, but there are risks that you should be aware of that could affect your case, particularly in personal injury, divorce, and criminal disputes.
 
Almost every case in modern times involves an investigation of social networking and related online history of the parties. The evidence that the opposing side is able to gather from your Facebook page, Twitter feed, blog postings, or other online contributions are admissible in court, and can lead to damaging results.
 
In divorce cases, it is routine for evidence from social networking sites to be used as evidence of parenting ability, and overall lifestyle choices. A parent that is posting derogatory messages about their former spouse, or who has lots of photos of themselves partying is likely to see their online postings fed back to them by the opposing lawyer during cross examination.
 
If you are involved in a personal injury claim, the defendant insurance company can use the messages and photographs posted on your Facebook page.  You may have posted a photograph of you dancing at a wedding that was taken prior to your injuries but added much later. The onus is then on you to prove your injuries happened after that photo was taken, or after a heavy dosage of pain killing medication and you can no longer enjoy that activity because of your injuries.
 
You have probably been involved in an e-mail or text message exchange or online chat where your sarcasm or humour was misunderstood. This is a common problem with short, electronic, communication. Think about your online postings. Could anything in those messages be misinterpreted to show that your injuries are not as serious as you have indicated? Any of this can have a downward pressure on any settlement offers or Court judgments.
 
In criminal cases, it would not be unheard of for somebody to joke around online with a friend about "getting away with" something for which they have been charged. Social networking postings can also be relevant when trying to establish (or dispute) alibi evidence.
 
In Newfoundland, a man filed a lawsuit after suffering whiplash injuries from two motor vehicle collisions in 2001 and 2003. As part of his claim, he argued that these injuries harmed his social life, because he had to turn down invitations from his friends due to the pain he was in, and they eventually stopped phoning him. He had enjoyed playing pool with his friends prior to the collisions, but claimed that he had to stop because he
was unable to bend over the pool table after making a couple of shots. The lawyers for the defendant produced evidence from the man's Facebook profile which contradicted his claims, and indeed seemed to indicate a very active.  The Judge stated "He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis. I find it incredible that Mr. Terry's social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little
social life. Without this evidence, I would have been left with a very different impression of Mr. Terry's social life." Mr. Terry closed his account with Facebook after the defence lawyers confronted him but it was too late. Mr. Terry had sought up to $1.3 million for special damages, but he was awarded $40,000 in general damages for his pain and suffering and the rest of his claims were dismissed.
 
Privacy controls on Facebook are not enough to prevent disclosure. Even though your Facebook account may be restricted in its public access to "friends only", courts have been allowing the discoverability of these accounts where it is relevant.
 
It is common practice for defence lawyers to "Google" the name of the plaintiff to see what comes up. The present court rulings would indicate that defence lawyers will be granted the right to press for disclosure of the content of all social networking sites and to bring those into discovery hearings and cross-examinations. Of course, all plaintiffs should be honest, but keep in mind that although management of your on-line persona is
in your hands, it may come under public scrutiny with a court's blessing.