Social media pictures and comments can become evidence in court

What we say on Facebook and other social media can and will be used against us in court. Hopefully, most people don’t have to go to court but if you are injured in an accident, it becomes a possibility.

Before Facebook, blogging and the current social media we had Internet bulletin boards. People would post the most personal stuff and it made me nervous for them. Why tell the world how you feel?

That was then and this is now where we all, some more some less, let our feelings hang out there. It’s fun, liberating but can create dangerous evidence in a trial.

Lawyer Nicolle Mangan points out the danger not just to the disabled but to anyone who gets into court in Working with Facebook in personal injury actions.

Whiling away your time at home during recovery on Facebook creates evidence that can be used in a discovery or trial. We all knew that right? Just like those people at Microsoft who sent email messages about wanting to “kill the competition”. Those slips of the tongue cost Microsoft tens of millions of dollars in legal fees, years of litigation and moucho trouble.

Just as emails are valid evidence, Facebook entries and pictures can be demanded in a court action.

In Leduc v. Roman, [2009] O.J. No. 681, the court required documents from a “private” Facebook account to be produced by a plaintiff. The following comment by the court provides a stark alert for personal injury counsel: “it is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on a party’s Facebook profile may be relevant to the allegations made in the pleadings.” Lawyers Weekly

In another case, delivery on a Facebook message was considered delivery “Knott v. Sutherland (Feb. 5, 2009), Edmonton 0803 02267 (Alta. Q.B.M.).” Delivery is that magical legal process by which you are served a notice or document. I don’t think that will work on PEI where delivery rules are stipulated in regulations but one Province can lead another.

As Mangan points out “Facebook is not the sole source of information. Blogs, Twitter, MySpace, LinkedIn, Bebo, YouTube, Flickr and other online sources are all areas defence lawyers must consider using for information.”

The potential here is double edged. On the one hand, you may be able to discover facts about your opponent in a legal action through social media easier than traditional detective work. Then again, so can they find out things about you.

Rules of evidence in BC are changing July 2010 to limit the demand for discovery documents to “documents which ‘could prove or disprove a material fact.'” That may limit demands for electronic documents. It will take time to see how the courts rule on that rule change.

In the meantime, a claim for back pain or debilitating injury from an accident may be lost if you post videos of yourself playing squash or touch football. Sitting under a cabana on the beach in Fort Lauderdale proves nothing other than you like sun, sand and surf.

The best advice is to be honest in all things and keep your secrets to yourself.

Note – this is not legal advice. If you have a legal problem see a lawyer.