Your Facebook photos may be held against you

Courts are still grappling with admitting social media postings into evidence, but there are several reported cases where litigants’ Facebook pictures were deemed admissible:

The first decision rendered in Canada on this subject came from the Superior Court of Justice of Ontario, which had to rule on the admissibility as evidence of photographs published on Facebook.4 The Plaintiff had instituted an action relating to bodily injuries suffered in an automobile accident and alleged that the consequences of her accident were loss of enjoyment of life, a reduction in her activities and that her social life had suffered greatly in view of her pain. Although the Plaintiff’s Facebook profile had not been discussed during the examination for discovery, the defence lawyer had accessed photographs published on the Facebook site of a cousin of the Plaintiff. The photographs showed a person having a lot of fun and who did not appear to be suffering or to be limited in her activities, thus contradicting her claims.

The judge admitted the photographs from the Facebook profile of the third party into evidence. Without the admissibility as evidence of these photographs found on the Facebook site, there would not have been any evidence contradicting the allegations and testimony of the Plaintiff concerning her loss of enjoyment of life. Thus, the impact of the admissibility of the Facebook items was important.

Another key decision was also rendered by the Superior Court of Justice of Ontario in 2007 in the case ofMurphy v. Perger5. This judgment was the first to rule on the admissibility as evidence of photographs found in the private section of a Facebook user’ profile. In this case, the Plaintiff was claiming damages for bodily injuries suffered in an automobile accident, in particular for the suffering and loss of enjoyment of life. In support of her claim, the Plaintiff had filed travel and sports activity photographs taken before the accident in the Court’s file. However, before the trial, the Defendant learned that the Plaintiff had published photographs on her private Facebook profile, which was limited to 366 “friends.”

The Court was of the opinion that the admission of the Plaintiff’s Facebook profile as evidence was possible and that it was not a fishing expedition. Since the photographs were already accessible to 366 persons, the judge was also of the opinion that there was no infringement of the right to privacy and that the Plaintiff could not have significant expectations concerning the protection of her private life.

The admissibility of photographs published on Facebook as evidence has also had rather harmful consequences on the credibility of plaintiffs in other cases.

For example, a Plaintiff6 claimed damages for bodily injuries suffered from two car accidents and claimed that he no longer had a social life. However, during cross-examination, the Defendant’s lawyer asked him about pages from his public Facebook profile, which the lawyer had printed. The Court was of the opinion that the Facebook evidence contradicted the Plaintiff’s claims since they revealed that the Plaintiff had a very active social life, that he attended parties and organized them, went to chalets on weekends, drank alcohol and smoked marijuana and seemed to have a number of good friends with whom he communicated and socialized on a regular basis. Following the cross-examination, the Plaintiff even closed his Facebook profile so that there would be no more incriminating items that could be used as evidence.

I may start advising my clients to stay off Facebook altogether until their cases have been dealt with.

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