The use of evidence from social media in personal injuries proceedings
1 March 2020
The topicality of unmeritorious personal injuries claims, in which the accuracy of a claimant’s description of their injuries is cast into doubt by the production of contradictory evidence from social media, raises several questions about the manner in which such evidence is introduced.
In a typical scenario a claimant, purporting to be the victim of some form of accident, attests to the impact that the injuries they sustained have had on their quality of life. This usually involves reduced mobility, constant pain and/or an inability to pursue a previously favoured pastime. The claim, however, subsequently fails when evidence is adduced which contradict their sworn testimony, often in the form of ‘status updates’ on social media, or photographs which reveal the claimant lifting heavy objects, performing strenuous dance routines, or taking part in a 10k race.
In some cases, such evidence will be widely available, as the photograph may have appeared in the press, or on an organisation’s website, and can be located by a simple imputing of the claimant’s name into an internet search engine. In an increasingly number of cases, however, the material is being obtained from social media, most commonly the account of the claimant themselves. Such material may exist in one of three circumstances.
– It may be publicly available by being visible on the public part of the person’s social media profile.
– If a photograph was taken by someone else or includes someone else,1 then that third party may well have uploaded it to their own social media account.
– It may be in the ‘private’ section of the person’s social media account, and not available other than to their social media ‘friends’.
The core issues
Three central issues arise in respect of the adducing of such material:
1. Is evidence gleaned from the public section of a person’s public social media account generally admissible, and can a defendant simply produce the evidence to contradict sworn testimony of the plaintiffs, without the requirement to notify the opposing side of their intention?
2. Does the fact that such material is concealed behind the user’s privacy settings alter the answer to the previous question?
3. Can a claimant be ordered to discover material from the private part of their social media accounts on the basis that it may be relevant and necessary, even if the applicant has no evidence that such material exists and appears to be something of a “fishing expedition”?
Right to privacy for users media users
A preliminary issue, central to much of the discussion on this subject, is a person’s right to privacy, and the interaction between ‘privacy’ as offered by the settings which a social media platform offers to its users, as against the wider concept of privacy as a legal right. While the right to privacy attracts Constitutional protection under Article 40.3.1, it should be remembered that the right is not an unqualified one, as per Hamilton P in Kennedy & Ors v Ireland.2 This is especially true when privacy is claimed so as to conceal behaviour of an unlawful nature.3 Most significant of all, perhaps, is that privacy as a legal right, and the ‘privacy’ settings of a social media account,4 are two entirely different concepts and, as case law discussed later on will reveal, should not be conflated.
Alternatively, confidentiality may also be advanced as a bar to such material being adduced as evidence. It does not exist as a right in the manner of privilege, for example, but instead will be recognised by the court only where the interests of justice require it.5 If we accept a broad definition of confidentiality to be that the person in possession of the information did not intend it to be broadcast publicly, such a claim is naturally problematic in respect of a publication on social media. Even if concealed behind privacy settings, it is nonetheless made available to possibly hundreds of Facebook ‘friends’, and so it is difficult to assert that it could be considered to possess the requisite degree of confidentiality.
The three questions posed above have rarely been considered by the courts of this jurisdiction. Anecdotal evidence, however, suggests that such material is routinely introduced by an opposing party to contradict the testimony of a claimant, without any requirement to reveal the manner in which such evidence was obtained. The courts’ willingness to let such evidence be adduced is perhaps a reflection of a lack of challenge to it being made on behalf of the claimant, which itself may reflect either a failure to appreciate the issues at play, or a sudden acceptance that the ‘game is up’.
Notwithstanding the reality that such evidence is routinely adduced in personal injuries proceedings, there would seem to be important issues to be addressed, which have been the subject of some debate in other jurisdictions. These are discussed below.
General admissibility of photographic evidence from publicly-accessible social media profiles
The initial question of admissibility can be disposed of relatively briefly. For such evidence is admissible, it must in the first place relevant,6 and there would seem little question but that material which potentially contradicts the extent of injuries suffered by a claimant would be relevant to proceedings.
Section 45 of the Courts and Court Officers Act 1945 requires parties to personal injuries actions to disclose certain specified categories of information, including expert reports, but does not require them to disclose evidence from social media. There would seem, therefore, to be no practical bar to a defendant, who is in possession of such material, simply confronting a claimant with it during cross-examination. Furthermore, there is no published report in this jurisdiction of a claimant either enquiring about how the material was obtained, or of raising an objection either as to its authenticity, or as to the right of the defendant to adduce it into evidence.
If it was publicly available, no issue would seem to arise in respect of any right to privacy on behalf of the claimant. This is particularly true if they had placed the material on a publicly-accessible part of their social media account, as any attempt by the plaintiff to assert a claim in privacy or breach of copyright, having already chosen to make the material available to over 2 billion Facebook users, would appear doomed to failure.7
In a rare published decision which considered the subject, albeit very briefly, the High Court in Gervin v MIBI8 rejected the complainant’s submission that photographs on her Facebook page, which contradicted her testimony as to the extent of her injuries, had been obtained in breach of her right to privacy. The court rejected this for the simple reason that she did not have a privacy restriction on her Facebook account at the relevant time.9 It is unclear whether the court would have held that her right to privacy would have been breached if such a privacy restriction had been in place.
Admissibility of material concealed by a user’s privacy settings:
What of material, however, that is hidden behind the privacy ‘wall’ of the subject, ostensibly to be viewed by only a few hundred Facebook ‘friends’ and not otherwise available? This is where the issue becomes more complex.
In these circumstances, the party seeking to rely on the material is faced with one of two choices. They may apply to the court for an order for discovery of material that they believe to be hidden behind the privacy settings. This issue is considered below.
Alternatively, they may already have obtained such material themselves either via a third party who was a ‘friend’ of the claimant, or by requesting that they be added as a ‘friend’ of the party whose material they are seeking and, subject to them being so added, the material would then become available to them. Having now come in possession of this ostensibly ‘private’ material, is the defendant simply allowed to present it to rebut the claimant’s testimony?
While these questions appear to be unventilated in the courts in this jurisdiction, a recent decision of the Workplace Relations Commission is of interest. In A Sales Assistant v A Grocery Retailer,10 the adjudicating officer was asked to consider comments which had been made by the complainant on a Facebook group which was open only to fellow union members, and which were the subject of disciplinary action by the respondent. The complainant submitted that those comments should have been considered private, but the Adjudicator held11 otherwise. The Commission held that it was ‘naive’ of the group’s members to think that anything posted to the Group page could be private, because ‘as a group with 43 members posting to a Facebook page, there is no prospect that the information could be contained in the group. While the members may have aspired to privacy, in reality, the information was posted on the world-wide web.”12
Of note also is the decision of the Northern Ireland High Court in Martin & Ors v Gabriele Giambrone P/A Giambrone & Law.13 The plaintiffs had obtained a Mareva injunction against the defendant solicitors, and sought to make use of comments made by the defendant on his Facebook page which they considered to be relevant to the proceedings.14 The defendant applied to have the evidence excluded, on the basis that the comments were visible only to his Facebook ‘friends’. In refusing the application, the Court gave little credence to the belief that such postings on social media could be considered confidential, and made a general statement about the dangers of posting material on social media which might be detrimental to any arguments they may seek to advance in court:
‘I should say that anyone who uses Facebook does so at his or her peril. There is no guarantee that any comments posted to be viewed by friends will only be seen by those friends. Furthermore, it is difficult to see how information can remain confidential if a Facebook user shares it with all hisfriends and yet no control is placed on the further dissemination of that information by those friends.’15
It should be noted that it is unclear how the plaintiffs came into possession of the comments in the first place – ie whether they were publicly available at some stage but subsequently hidden behind a privacy setting, or deleted altogether. As already stated, the courts in this jurisdiction seem not to generally enquire as to the provenance of such material, although they would presumably do so were its authenticity to be called into question by the claimant.
Would a ‘friend request’, however, designed purely to gain access to the private section of the claimant’s social media account, render any evidence subsequently adduced as inadmissible? And does the answer to this question vary depending on whether the opposing party set up a fake account with the intention of being added as a ‘friend’ so as to gain access to the claimant’s account? While it may be considered unethical for a legal practitioner to set up such an account themselves, it is unclear as to whether the courts would refuse to admit evidence obtained in this manner.
Discoverability of such material
The discussion thus far is predicated on a party already being in possession of the material with which they seek to expose the questionable nature of the claimant’s evidence. More complex again is a request to discover the private section of the claimant’s social media profile, on the basis that there may be material of relevance concealed behind the privacy settings, and the degree to which the party seeking such discovery will be required to demonstrate that their request amounts to little more than the oft-criticised ‘fishing expedition’.
In such cases, the application may take the form of a request for discovery of the party which created the material, or alternatively a request for non-party discovery of the social media platform which hosts it. The traditional test of whether such material is relevant and necessary will be engaged, and the plaintiff may attempt to resist discovery on the basis that such matter is private or confidential. As regards obtaining the material from the social media platform – ie a non-party – the test16 is similar to that for inter-parties discovery, though it is likely that the applicant will be put on stricter proof as to the likelihood that the non-party is in possession of the requested material.
In the courts of the US and Canada, this has been the subject of several interesting, and sometimes contradictory, decisions. In Murphy v Perger17 the Supreme Court of Ontario considered an application for discovery of photographs which were available only to Facebook friends of the plaintiff, who had brought proceedings for personal injuries arising out of a road traffic accident. The court held that, as the plaintiff had photographs on the publicly-accessible portion of her profile which were relevant to proceedings, it was reasonable to infer that relevant photographs were also posted in the private part of her account.18 The court refused to accept the plaintiff’s assertion of a right to privacy over the material. It held that because the plaintiff had 366 Facebook ‘friends’, to whom the material was available without restriction, she could not be considered to have a reasonable expectation of privacy.19
In Leduc v Roman20 there was nothing on the part of the claimant’s publicly-accessible page to suggest that there was any relevant information behind their privacy shield, as the only visible elements on the public part of their page was their name and profile photograph. The Ontario Superior Court of Justice nonetheless allowed the defendant’s discovery application, holding that the public and private section of a Facebook profile should be treated in the same manner, and that a party is required to discover any material that is relevant to the proceedings: ‘To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial’21
The US court in Romano v Steelcase Inc.22 also rejected the submission that a plaintiff had a right to privacy over material posted to their social media accounts, even though it was hidden behind privacy settings: ‘When Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.’
A different decision, however, was arrived at by the Ontario Superior Court in Stewart v Kempster.23 The plaintiff had 139 Facebook friends, but the court took the view that the exclusion of over a billion Facebook users from viewing her photographs was evidence that ‘she has a real privacy interest in the content of her Facebook account.’24 The court concluded by drawing an analogy between the discovery sought of electronic material, and its pre-internet age equivalent of people communicating by letter: ‘It is unimaginable that a defendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff’s claim for non-pecuniary damages. The shocking intrusiveness of such a request is obvious.’25
Alternative Remedies
Where the courts have held that no right to privacy was engaged in respect of material on a person’s Facebook profile, the usual decision has been to order the plaintiff to discover any material which is relevant to their claim of having sustained the injuries complained of.26 In some cases, however, the US courts have gone even further than simply allowing the defendant’s discovery request – in some instances, they have ordered that the defendant be provided with the login details required to access the plaintiff’s Facebook account, so that they can search for any relevant material themselves.27 In one instance,28 the trial judge himself, frustrated at the slow pace at which inter-party discovery was taking place, suggested that he himself create a Facebook account, request that they plaintiffs add him as friend ‘for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.”29
The US courts have likewise held that it is acceptable for law enforcement authorities to gain access to the private section of party’s Facebook page by obtaining the material from a Facebook ‘friend’ of the subject, who was willing to co-operate with the authorities by providing them with the material.30 The United States District Court held that ‘[the plaintiff’s] legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government.”
Conclusion
Given the fact that privacy is a constitutionally-protected right in this jurisdiction, and what would seem to be at least statable points as to the status of material which a person purports to share only with a select few friends on their social media account, it is perhaps surprising that the above issues remain unventilated in this jurisdiction.
It may well be that a superior court will pass judgment and find that the interests of justice clearly dictate that such material, when it appears to contradict sworn testimony, cannot be protected by any claims to privacy. The attitude of the WRC in A Sales Assistant v A Grocery Retailer, and the common attitude of the courts in other jurisdictions, seems to be that a claimant gives up the right to assert any privacy over material which they voluntarily placed on their social media account. And in those circumstances, the manner in which the opposing party may have obtained such material is of no great concern to the court.
But the question of whether discovery of the private section of a claimant’s Facebook account would be permitted remains an unanswered one, as would the court’s attitude towards material which has been obtained by the opposing party in a manner that may be somewhat less than entirely ethical. It is surely only a matter of time before a plaintiff raises an objection to material which is introduced from their social media account in an attempt to cast doubt on their version of everts, and perhaps answers to some or all the questions posed above will be provided by the court.
Ends.
(This article was first published in The Bar Review, February 2020. Available here).
1 This occurred in the recent US case of Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [168 AD3d 587], in which the claimant in a personal injuries case had been tagged in a photograph taken by a Facebook friend and uploaded to the latter’s publicly accessible Facebook page.
2 Kennedy & Ors v Ireland & Anor [1987] 1 IR 587.
3 In EMI v UPC Communications Charleton J that the right to privacy is lost when unlawful activity is sought to be concealed: “I find it impossible to recognise as a matter of constitutional law, that the protection of the entitlement to be left in the sphere of private communications could ever extend to conversations, emails, letters, phone calls or any other communication designed to further a criminal enterprise.”
4 Facebook users have a choice as to whom they make the content that the upload available. Their content can be visible to all users of Facebook – approximately 2.2 billion people worldwide – or its visibility can be limited to a limited number of Facebook ‘friends’ chosen by the account holder. This is achieved via the privacy settings which the user chooses to adopt for their account, and material which the user chooses to make available only to their friends is considered to be “private.”
5 See Traynor v Delahunt [2009] 1 IR 605, at 615. In Independent Newspapers v Murphy [2006] 3 IR 566, at 572, Clarke J held that “It is clear that confidential information which is not privileged) must be revealed if not to reveal same would produce a risk of an unfair result of proceedings. The requirements of the interests of justice would, in those circumstances, undoubtedly outweigh any duty of confidence.”
6 See People (DPP) v Ferris (unreported, Court of Criminal Appeal, June 10 2002) at page 6.
7 This issue was considered, albeit briefly, by the English Employment Tribunal in Crisp v Apple Retail (UK) Ltd ET/1500 258/11. See discussion at para 3.110.
8 Gervin v Motor Insurers Bureau of Ireland [2017] IEHC 286
9 Gervin v Motor Insurers Bureau of Ireland [2017] IEHC 286, at para 52.
10 A Sales Assistant v A Grocery Retailer (ADJ-00011898), decision of 2 August 2018.
11 In a finding which echoes that in Martin & Ors v Gabriele Giambrone P/A Giambrone & Law [2013] NIQB 48.
12 See also the similar findings of the English Employment Tribunal in Preece v JD Wetherspoons Plc (ET/2104806/10) and Teggart v TeleTech UK Ltd NIIT/704/11, discussed at paras 10.74 and 10.129 respectively.
13 Martin & Ors v Gabriele Giambrone P/A Giambrone & Law [2013] NIQB 48.
14 The relevant comment was ‘They thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.’ Martin & Ors v Gabriele Giambrone P/A Giambrone & Law [2013] NIQB 48, at para 1.
15 Martin & Ors v Gabriele Giambrone P/A Giambrone & Law [2013] NIQB 48, at para 4.
16 See Keating v RTE [2013] IESC 22 (unreported, Supreme Court, 9 May 2013)
17 Murphy v Perger [2007] O.J. No. 5511 (Ont. SCJ).
18 A similar inference was drawn in by the Supreme Court of Ontario in Frangione v Vandongen (2010) ONSC 2823.
19 The court arrived at a similar conclusion in in Frangione v Vandongen (2010) ONSC 2823, in which the plaintiff had less than 200 Facebook ‘friends’, describing the attempt to assert a right to privacy as ‘preposterous’, at para 38.
20 Leduc v Roman (2009) CanLII 6838 (ON SC).
21 Leduc v Roman (2009) CanLII 6838 (ON SC), at para 35.
22 Romano v Steelcase Inc. and Educational & Institutional Cooperative Services Inc.,907 N.Y.S. 2d 650 (21 September 21, 2010)
23 Stewart v Kempster (2012) ONSC 7236.
24 Stewart v Kempster (2012) ONSC 7236, at para 24.
25 Stewart v Kempster (2012) ONSC 7236, at para 29. This analogy was rejected in the US case of In Largent v Reed No. 2009-1823 (District of Pennsylvania-Frankly County Branch), in which the Court stated that“Largent complains that Rosko’s motion is akin to asking her to turn over all of her private photo albums and requesting to view her personal mail … But those analogies are mistaken in their characterization of material on Facebook. Photographs posted on Facebook are not private, and Facebook postings are not the same as personal mail.”
26 See Leduc v Roman (2009) CanLII 6838 (ON SC), in which the court ordered that the claimant ‘preserve and print-out the posted material, swear a supplementary affidavit of documents identifying any relevant Facebook documents and, where few or no documents are disclosed, permit the opposite party to cross-examine on the affidavit of documents in order to ascertain what content is posted on the site.’
27 See Romano v Steelcase Inc. and Educational & Institutional Cooperative Services Inc.,907 N.Y.S. 2d 650 (21 September 21, 2010), and Largent v Reed No. 2009-1823 (District of Pennsylvania-Frankly County Branch).
28 Barnes v. CUS Nashville LLC No.3:09-cv-00764 (M.D. Tenn) (June 3, 2010).
29 It is unclear from proceedings whether this offer was actioned.
30 See US v Merigildo 883 F. Supp. 2d 523 (S.D.N.Y. 2012) Aug 10, 2012.