Should you put that on Facebook?

Common sense tips to prevent your online life from wreaking havoc in your legal case

It is impossible to have complete privacy online. The nature of electronic communication means that comments and images can travel quickly and easily. Even the most advanced privacy settings cannot completely prevent materials from sites like Twitter, emails, or texts from spreading online. 

Given the nature of social media, users are generally held to have implicitly accepted the risk that the materials they post could be shared with others – or even become “viral.” For instance, the defendant in a recent defamation case in British Columbia was found liable for her own derogatory remarks about a neighbour on Facebook as well as the remarks her friends posted in the comments section.

Not surprisingly, electronic communications are appearing more frequently as evidence in legal proceedings. Photographs, “shares,” “likes,” location “check-ins,” friend lists, status updates, and “tags” can all be used to call aspects of your claim, or your credibility, into question. As long as the material is considered relevant to the case at hand, many judges are finding social media content admissible as evidence.

This article briefly considers a few ways that electronic communication can create issues in three areas of the law: employment, family, and personal injury.

Striking a balance: Social media usage in the workplace

Employers should be aware of how their employees’ use of social media can impact their business. At the same time, however, employers must be conscious of balancing privacy and confidentiality issues inherent in monitoring employees’ accounts.

Employees should also be aware of the possible negative effects of their social media content and activities on their employment.

At the hiring stage, employers should avoid conducting “social media background checks” on applicants. Accessing personal information leaves employers vulnerable to accusations that their hiring decisions were influenced by personal information irrelevant to the requirements of the job, such as ethnicity, gender/gender identity, religious beliefs, or political affiliations. Employers are also prevented from asking for social media passwords for privacy reasons.

Once employed, it may also be possible for an employee to be dismissed for the content they post. In Prince Edward Island, for instance, a personal care worker was recently dismissed for posting a photo of a deceased resident on Snapchat with an inappropriate caption.

Employees have a right to free speech, and not everything they post, even those postings made in questionable taste or which are not to the employer’s own personal standards of acceptability, will be sufficient to justify termination of the employment relationship. The key question in law is whether the post harms the employer’s reputation and/or makes it impossible for the employee to continue to work with others in the future.

To avoid confusion, organizations should develop clear policies on the appropriate use of social media in the workplace. Common issues include:

• if employees are permitted to post information about customers or clients; 

• whether employees are permitted to access their personal accounts during working hours;

• who owns social media content the employee produces during work hours;

• whether the employer monitors use of social media;

• a complaints and reporting process for inappropriate usage, including online bullying and harassment; and 

• the consequences for any breaches of the policy. 

Think before you post: Repercussions of social media in family law cases

Social media is proving a rich source of evidence in divorce as well as child custody and access cases.

Postings can be used to contradict a spouse or parent who claims they do not have the means to pay support. Depicting a lavish lifestyle online may come back to haunt you in court if you claim that you do not have the ability to meet your financial obligations to your children or former spouse.

Your social media activity may also call into question your ability to effectively parent. The Nova Scotia Supreme Court (Family Division) has denied a parent access to his child, for instance, because the court considered the crude and homophobic comments he posted online to reflect negatively about his judgment.

Courts generally disapprove of the use of social media to disparage the other parent in access and custody cases as well. The concern is that the children involved may one day find the posts and be harmed by them.

To avoid the pitfalls of social media usage in your family law case, resist the temptation to make disparaging comments about your former partner.

Every move you make: How social media can undermine your personal injury claim

Finally, evidence from social media is appearing with greater frequency in personal injury cases to discredit plaintiffs who claim monetary damages relating to debilitating physical injuries or a loss of enjoyment of life following an accident.

Tracking “apps” or “check-ins” which contradict your movements on the day of your accident may be used to question your description of events. Photos of you engaging in strenuous physical activity or enjoying social events may undermine statements you have made about the severity and duration of your injuries.

It is important to place social media evidence in context. Judges typically require proof that electronic communication materials are relevant to the case at hand before ordering plaintiffs to hand them over. If they are admitted, it does not necessarily mean the court will place a significant amount of weight on social media postings either. There is recognition that people often put the best versions of themselves online while hiding or downplaying the negative.

However, even if content is uploaded behind privacy walls, social media may still be admissible as evidence if the court considers it relevant to the case.

When in doubt, leave it out

Regardless of the nature of the legal issue, the simplest way to avoid issues is to resist the temptation to post on social media during the span of your case. If you have any hesitations about what you are about to upload, it is always best to err on the side of caution. After all, once it is posted the Internet, it is nearly impossible to remove it completely.

If you are aware of any potentially damaging social media content, you should notify your lawyer to mitigate the potential adverse consequences to your case. Do not let a status update, photo upload, or blog post become something you come to later regret.

Our team of legal professionals at Patterson Law are ready to assist if you have any questions related to the use of electronic communication in any of these areas or beyond.