Part 2: Social media as evidence
Justice Neville states in Dautry & Wemple [2015] FCCA 943 at [28] that “the Court regularly warns litigants about the use of social media and the ready access by others to it… making information available through social media necessarily involves, if not invites, others having access to it.”
More than 20.5 million Australians use at least one form of social media such as LinkedIn, Facebook, Instagram, Twitter etc. As we touched on last week, as social media has become more prevalent in society, it has become more relevant in our legal system.
Materials sourced from social media can be treated like ordinary evidence but what is going to be considered as “relevant” will depend on the facts and circumstances of each individual case.
Below are some examples where social media materials have been considered by the courts as evidence:
Digby v The Compass Institute Inc and Anor [2015] QSC 308 (“Digby”)
Digby was the first case where a court has ordered a Plaintiff (injured person) to a personal injury claim to provide all material contained in their Facebook account to the defendant insurer. This case involved Digby, a female support worker employed by the Compass Institute. On 18 June 2008, Compass Institute arranged for a police officer to give a presentation at the institution about stranger danger.
During the presentation, the police officer turned on the siren of a police vehicle which caused a patient Digby was assisting to become started and fall. As the patient was falling, Digby attempted to arrest the patient’s fall and in doing so, suffered an injury to her right shoulder. Digby also claimed developing a secondary psychological injury which she had developed to the impact of her right shoulder on her pre-injury lifestyle and employment.
At the time of the trial, some seven years after the incident, Digby claimed she had not been able to return to any form of employment due to her work-related injuries. During the trial, the defendant submitted surveillance showing Digby going about her daily activities with no tremor in her right shoulder. The Defendants then sought at Order at trial for Digby’s Facebook material to be disclosed which was ultimately granted by Justice Atkinson. This order was granted on the basis of consent between the parties and not pursuant to an argument raised by the respective defendants.
Contrary to Digby’s allegations that she was socially isolated, the Facebook records indicated that she was continually in contact with her Facebook friends, had an active social live, and formed a romantic relationship. The messages and posts disclosed provided evidence that Digby had been experiencing other significant life stressors unrelated to the work-related incident and injuries that could be impacting on her psychological state. Digby was examined by multiple psychiatrists following the incident and refrained from disclosing these stressors when assessed during the claim.
Such stressors included the serious difficulties she had been experiencing with her 14 year old son who she described to a friend as someone who could become aggressive and was fearful of. Her son also attempted suicide which not only deeply upset her but raised fear that she would be found as an unfit mother by social services and subsequently have her son removed from her care.
When assessing Digby’s quantum of damages, the Court found it difficult to accept her evidence as to the extent of her injuries and the subsequent impact on her employment and day to day life which resulted in her compensation being significantly reduced.
Foong v Ghaly; Foong v McLellan [2017] NSWDC 303
This case involved a self-represented Plaintiff, Ms Foong who was involved in two separate motor vehicle accidents and commenced court proceedings claiming damages in excess of $20 million as a result of the two motor vehicle accidents. Ms Foong claimed that as a result of the motor vehicle accidents, she was unable to continue working as a real estate agent or participate in social activities. In additional to the lack of supportive medical evidence produced by Ms Fong, the Court found that Ms Fong’s social media demonstrated that:
She was able to participate in legal proceedings relating to the trust account anomalies in her real estate practice;
Fly to Melbourne to holiday and continue working; and
She was able to participate in a range of social activities.
The Court ultimately awarded her $1,250 for each accident before she appealed to the Supreme Court which was ultimately dismissed and was also forced to pay the costs of each of the defendants.
Saul v Machalek & Anor [2020] QDC 69
The plaintiff in this case, Mr Saul, was a professional motorcycle stuntman who suffered injury to his knee. He pursued a claim for damages, including a claim for economic loss.
Whilst the Court ultimately accepted the plaintiff was overall an honest witness, Muir DCJ did not accept all of the plaintiff’s direct evidence as it was (in parts) inconsistent with other evidence (including social media posts made by the plaintiff and which were tendered at the trial).
When presented with some of his posts under cross-examination that were inconsistent with his direct evidence the plaintiff tried to explain some of the posts away by saying they were an exaggeration of the truth for social media purposes. The social media evidence was an influencing factor in the Court not accepting all of the plaintiff’s evidence.
