Anything you do or say may be used against you in the court of law. Increasingly, this includes what you may have shared online.
Over the last few years, as sharing of personal information on social media has become more ubiquitous, many personal injury cases in Ontario are being decided on evidence gathered from plaintiffs' social media accounts, which provide 'metadata' creating a time and location stamp of a user's online activity. And it's all admissible as evidence in court.
Crucial to the admission of this kind of evidence is what social media now represents -- a public forum where users openly share details of their private lives and personal opinions. Once a comment, status update, tweet or photo is posted, it has gone public and it never really goes away, even after you hide or delete it.
Whether the defendant is an employer fighting a case of wrongful dismissal or an insurance company denying an injury claim, they will often turn to their search engines and monitor a plaintiff's social media activity, cross-referencing the details of their legal claims with the content and timing of their online activity to invalidate or refute them. This is particularly the case if posts are made during a court proceeding.
This is what happened in Frangione v Vandongen et al., where the plaintiff was suing for damages arising out of injuries--traumatic brain injury, neck and back pain and headaches--sustained in two separate car accidents. The defendant sought to access the entire contents of the plaintiff's personal computer, including any material contained on his Facebook account.
The plaintiff insisted that submitting access to his Facebook profile -- and the communications to third contained within -- was a breach of privacy, while the defendant cited precedent to argue the contents of a claimant's social networking profile were relevant to the case and that submitting those documents was a practice that was "beyond controversy."
To have a photo or post be interpreted as indicative of your actual state of being is highly speculative.
In the end, the plaintiff was ordered to preserve and produce "all material contained on his Facebook website including any postings, correspondence and photographs up to and including any postings, correspondence and photographs," up to and including the date of the order.
Since this is becoming an increasingly common legal strategy in Ontario courts, a more difficult question arises over whether social media content can be considered reliable evidence.
After all, social media profiles are typically used to exhibit a public profile that displays what we choose to share with our friends and followers. To have a photo or post be interpreted as indicative of your actual state of being is highly speculative.
Judges now require proof of relevancy before ordering plaintiffs to submit social media materials. In a recent decision in Merpaw v. Hyde, Justice Rick Leroy denied the defendant's discovery motion to overturn a refusal to provide a private Facebook account by the Plaintiff, who claimed "a reduced enjoyment of life, incapacitation from employment, chronic fatigue and depression" resulting from a trip and fall injury.
In his decision, Justice Leroy cited "minimal probative value in this data to the issues of enjoyment," and was "unclear on the inferences that can be drawn from usage analysis."
But as a standard practice, you should always be acutely aware of how your social media profile reflects your circumstances, especially as interpreted in a court of law.
Be aware of how your profile appears to employers, insurers or any party that could use your personal information shared on a public forum against you.
If you are involved in a court dispute, your lawyer should advise you to conduct a thorough scrape of your online presence before and during the proceedings, and highlight any potential red flags that could be used as evidence against you.
Above all, don't post new content that you might regret later. Ask yourself: "do I really need to post this now?"
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According to Reuters, an employee of Nationale Suisse called out sick from work, claiming that "she could not work in front of a computer as she needed to lie in the dark." When she was discovered to be surfing Facebook from home, she was terminated. The woman maintained that she had used her iPhone to check her Facebook page from bed; however, Nationale Suisse issued a statement saying explaining that the incident "had destroyed its trust in the employee."
Caitlin Davis, an 18-year-old cheerleader with the New England Patriots, was fired over photos she posted to Facebook. Associated Content describes the snapshots: The pictures showed Davis and an unidentified friend leaning over a passed-out boy whose entire face and body was covered in distasteful graffiti. "Penis," (accompanied by said phallic symbols) 'I'm a Jew' and a couple swastikas are only some of the things drawn all over the unfortunate unconscious friend.
A juror in the UK was dismissed after she disclosed sensitive case information on her Facebook profile, MSN reports. "I don't know which way to go, so I'm holding a poll" the juror wrote, asking her Facebook friends to weigh in on the case.
Virgin Atlantic took disciplinary action against 13 crew members who participated in a Facebook discussion that "criticised [Virgin's] safety standards and insulted passengers," according to the Guardian. The individuals "posted messages on Facebook referring to passengers as "chavs" and making jokes about faulty engines," explains the Guardian, adding that they also "joked that planes were full of cockroaches and claimed the airline's jet engines were replaced four times in one year.comments joked that planes were full of cockroaches and claimed the airline's jet engines were replaced four times in one year." The comments were promptly removed, the group was "sacked," and Virgin did not disclose many details other than a statement saying the unruly employees had "brought the company into disrepute."
Ashley Johnson, a former waitress at Brixx, a pizza restaurant, claims she was fired from her job for complaining about customers on her Facebook account. According to CBSNews, Johnson became irritated after she had to stay past her shift to wait on a table of two. When the table finally cleared out, they left what Johnson deemed an inadequate tip. "Thanks for eating at Brixx," she reportedly wrote on her Facebook page, before using profanity and calling the customers "cheap." Johnson told UPI.com that she accepts responsibility for her actions but didn't expect to be fired over something she calls "very small." One of the restaurant's co-owners, however, said that Johnson had violated company policy: "We definitely care what people say about our customers."
Dan Leone, a game-day employee at the Philadelphia Eagles stadium, told the Philadelphia Inquirer that he was fired for criticizing the team via Facebook. After the Eagles' beloved safety Brian Dawkins signed to the Denver Broncos, Leone posted the following status update: "Dan is [expletive] devastated about Dawkins signing with Denver. . .Dam Eagles R Retarted!!" Days later, Leone said he was contacted by the team's director of event operations regarding his Facebook post. Leone deleted that post, but couldn't save his job.
Farm Boy, a Canadian grocery store chain fired seven employees for creating a Facebook group ("I got Farm Boy'd") that mocked customers and included "verbal attacks against customers and staff." "No one was terminated for simply posting on a website," Farm Boy president Donny Milito told Canada.com, "We have always been about respecting our customers and employees. ... In the end I felt we had to stand up and defend ourselves in the best interest of our customers."
A Georgia high school teacher claims she was forced to resign after her principal "questioned her about about her Facebook page, which included photos of her holding wine and beer and an expletive," CBSAtlanta reports. The teacher is now suing the school district because, she claims, she was not informed that she had the right to a hearing before stepping down. The National Education Association reveals that in other states, several young teachers and school staffers have put their jobs at risk by revealing personal information that parents and supervisors find inappropriate.
Andrew Kurtz, a Pittsburgh Pirate pierogi mascott, was fired after he took to Facebook and voiced his opinion about the team's management. New York Daily News provides the details: The message was aimed at team president Frank Coonelly, general manager Neal Huntington and manager John Russell and read: "Coonelly extended the contracts of Russell and Huntington through the 2011 season. That means a 19-straight losing streak. Way to go Pirates." Days later, Pirates communications director Brian Warecki told ESPN that Kuntz had been rehired because "he had not been dismissed in accordance with company procedures." Warecki also said that "bad publicity played no part in the decision."
Colleton County paramedic and firefighter Jason Brown was dismissed from his job after posting a video that shows an exchange between two cartoon characters at a hospital. Firefighter Nation reports, In a letter of dismissal Brown provided, Colleton County Fire-Rescue Director Barry McRoy said, "You [Brown] displayed poor judgment in producing a derogatory video depicting a member of this department with a physician which is implied to be at Colleton Medical Center."
Oregon wide receiver Jamere Holland slammed his school's athletic program after hearing a linebacker was kicked off the team. Although reports that the teammate had been dismissed were false, Holland was kicked off for the "racially charged" remarks. "I wish I could block whites as friends and only have blacks LOL, cause apparently I'm misunderstood," he reportedly wrote. (via ShortNews.com)
Six Australian state corrections workers came under fire for a Facebook group, "Suggestions to help Big RON save a few clams," criticizing their boss and a government plan to privatize several prison facilities. The members of the online group, which numbered in the hundreds, according to Australia's Sydney Morning Herald, made posts about wasteful management practices and criticized Corrective Services Commissioner Ron Woodham. "Among the comments posted on the group, members suggested the department could save money by sacking senior officials who they claimed added little value. Other comments also revealed areas of wastage within Corrective Services," the Sydney Morning Herald writes. When Woodham discovered the group, he suggested that certain members be fired for the "public," "bullying" comments they had made online. Those members, who became known as the Facebook Six, waited in limbo for six months before they won their case against the NSW Corrective Services Department.
One woman's (alleged) Facebook post reportedly caught the attention of her boss, who offered a prompt reply--along with a pink slip.
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