Social media is not your friend in litigation
Published 14 Nov 2016
With today’s society increasingly moving to online communication to stay connected, it is important to know what information is being put out into the world for anyone to look at.
For a long time now the solicitors at Gerard Malouf and Partners have been warning clients of the dangers that social media can present to our clients. There is nothing more damaging they an injured person stating they can’t drive, and a picture (placed on social media by the client themselves) showing just that.
Or a nervous shock claimant who claims that they no longer have the will to continue with a social life, yet their social media is full of all their social adventures.
It is becoming more and more the standard practice of insurers to immediately undertake a social medial search of the claimant and correlate all the information about their employment, and ongoing social activities. It also grants them information as to who their family and friends are and access to potential witnesses.
The Defendant Insurers have become even sneakier. They will take screenshots of any damaging information or photos, noting the URL’s just in case the photos or information is deleted. Even if your posts are on private the Insurer can still access the public information which have been “liked”, “commented” on or linked to public groups.
The recent Queensland case of Elizabeth Ann Findlay v Queensland Folk Federation Inc and Ors  is a good example of the above. The Plaintiff claimed that she suffered from a major depressive disorder which significantly impaired her enjoyment of life, destroyed her capacity to earn a living and resulted in a need for significant assistance with her day to day activities. However her Facebook page showed a very different picture, in fact the opposite.
The Defendant made an application to the Court to order the Plaintiff to disclose her Facebook profile to them. The Defendant Counsel argued that despite the Plaintiff’s allegations of being injured and impaired, the plaintiff’s Facebook page revealed that she was not as injured as the pleadings made out to be and that the Defendant should have access to this information to support their case. Justice Reid accepted this argument and ordered the Plaintiff to accept a friend request from the defendants for the purposes of disclosure in the litigation.
The Defendant ultimately was able to obtain information which was very damaging to the Plaintiff’s case.
A saving grace for the Plaintiffs is that it would be unethical and a breach of the lawyer’s code of conduct for defendants to create fake accounts and then request the Plaintiff befriend them. Currently such application for social media access must be made to the court first.
The take away message is that even if your social media page is private the Defendant insurers have a high chance of obtaining access to the information. This information is often damaging to your case.
While at Gerard Malouf and partners we have been advising our clients of the risks associated with social media it is important to be reminded of this issue.