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LIV President's Blog 2014

LIV President's Blog 2014

Geoff Bowyer, LIV President 2014 on the latest issues and topics. Read and comment.

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Social media evidence – how to make it work for you, not against you

Social media evidence – how to make it work for you, not against you

How damaging can Social Media Evidence be?

We recently heard a cautionary tale from an LIV member. He described a case where his firm was acting for a client who had suffered a car accident that had apparently caused damage to her cognitive function, diminishing her decision making ability, concentration and causing stress that rendered her unable to maintain social relationships.

The case was progressing well, until the opposition presented their evidence. It included details of the client’s active, and unprotected, Facebook account. Not only did she regularly update her account with details of her busy social life, but she was also an avid Facebook gamer – and a pretty good one at that, with some impressively high scores. Needless to say, the case resulted in a significantly different outcome than anticipated at the outset.

This firm now includes advice to clients on their social media account privacy settings, security and usage as part of its standard initial client interview, including a suggestion for clients to be very careful in their usage of social media for the duration of their case.  This practice is advisable for all law firms, as social media evidence is becoming increasingly pivotal in a range of cases. The LIV has a fact sheet on how to advise your client on social media usage.

Key tips:

  1. Advise clients on their privacy settings for each of their social media accounts.
  2. Discuss the type of content that is appropriate to share on social media (eg. don’t post anything they would not want their grandmother, employer or the judge to see).
  3. Encourage clients to review their social media contacts and delete those with whom they are no longer acquainted.
  4. Ask clients if they store or share passwords for social media accounts or access them on public computers.
  5. Provide real life examples of the effect social media can have on legal proceedings.

How admissible is social media evidence?

The current state of the law surrounding admissibility of social media evidence is in a state of flux, with limited Australian case law. In the United States, case law is divided between those cases in which there is a very high threshold of proof required to admit social media evidence by only allowing it into evidence if the Court determines with certainty that the evidence is authentic, and other decisions in which social media evidence is admissible if there are sufficient facts to show a reasonable juror that the proponent created the evidence.

Significantly, Facebook sites and blogs are not self-authenticating and the issue has always been that courts are, quite rightly, concerned about the ease with which a person can pretend to be someone else online. 

When is social media evidence admissible?

There is nothing special about social media evidence per se. The usual rules of evidence apply. Consider:

  1. Is the evidence relevant?  Does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?
  2. Is the evidence authentic? Can the proponent of the evidence show that the evidence is what it purports to be?
  3. Is the evidence hearsay? And if so, is it covered by an applicable exception?

For admission of social media evidence in court, a party must show the evidence is relevant and authentic.  This will necessarily involve considering the Evidence Act 2008(Vic) or the Evidence Act 1995(Cth) (refer to the LIV fact sheet Social Media Evidence for more information).

Key tips

  1. Be prepared and plan for the introduction of social media evidence, for example check a witness or the other party’s Facebook or LinkedIn pages.
  2. Ask a witness with personal knowledge of the social media evidence or a computer forensic expert to authenticate the evidence. Consider whether a computer needs to be forensically examined.
  3. Make a list of the circumstances that apply to the social media evidence to explain why it is authentic, for example by reference to identifying characteristics.
  4. Serve a Notice to Admit the authenticity of the social media evidence.
  5. Be prepared to provide the court with information to understand the technology issues and consider whether there are case management tools that could assist the court.

Social media evidence is being used with increasing frequency and, as we all know, a case can be difficult enough to win without your own client creating damning evidence for the opposition.

Further reading on advising your clients on social media usage and presenting social media evidence in court, check out the LIV Social Media fact sheets.

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