Aug 13, 2013 in News Tort

Tort: Social Media in Litigation

The evolution of social media and its strong presence in our lives leads lawyers to ask one major question: ?Can social media be used in court??

The answer to this question, in short, is yes. Accessing personal accounts is a growing tool in litigation. Why wouldn't it be? Your Facebook and Twitter are perhaps the most telling trail of evidence you can create? and it's all just posted online on public platforms. A recent Lexology article explains the rules on social media usage in courts with the main point being that social media posts are considered to be revealing documents that must be produced only if their material is relevant to the case. There are cases where social media accounts cannot be accessed by lawyers. Regardless, it's best to be conscious when posting on the web. Before litigation starts, lawyers should inform clients that social media may be accessed during the discovery period. The discovery period is a phase during each case when each party reviews the other party's information so long as it pertains to the matter at hand.

There used to be a time when people worried about personal emails being used formally. We were warned that electronic mail can be considered for formal review. The same goes now for social media only it's even worse. With people constantly updating statuses and tagging themselves in photos, they are inherently providing online documentation of their lives as they unfold. Social media overall is considered a more powerful tool in court due to its accuracy of documenting personal events.

Courts have often ordered that personal social media accounts be produced. This has led to wrongful dismissal of claims. In personal injury cases, a plaintiff suing for pain and suffering (also known as tort) is common. This usually implies that the personal has lost enjoyment for life and may not be able to work in his or her profession. Here's the catch though: if you are suing for pain and suffering, and the opposing lawyer accesses your Facebook or Twitter account, they may find evidence against your claim. E.g. posts about a great day at work or photos of you socializing on the weekend. (See Global Law Watch's chart for Canadian cases where social media played a role.)

Court access to personal accounts isn't without its limitations though. These spaces will not be used if they are not relevant to the case or if the privacy of the account holder is seen as more important than the probable value of the evidence. So if someone claims that producing their site would be a breach of their privacy, but they are also sharing their posts and pictures with hundreds of near strangers, their privacy likely won't be seen an issue. But if someone has enabled strict privacy settings and they share content with only a few, their privacy is more likely to be considered.

The personal injury and accident lawyers at Neinstein Personal Injury Lawyers have over 40 years of experience and we know all the rules of courts including the details around social media. We know how to fight your case. Set up a free consultation and come talk to us. Call us at 416-920-4242.