Many people use social media forums as a method of communication. There are pros and cons of using social media, but one thing to bear in mind is that posts, comments and messages on social media can potentially be disclosed in court proceedings.
During the course of civil court proceedings, the parties are usually ordered to provide disclosure of documents which are relevant to the dispute. A document is very broadly defined as “anything in which information of any description is recorded”. E-mail and electronic communications fall within this definition. Posts and messages on social media can also potentially fall within the definition of a “document” and may have to be disclosed, in accordance with the parties’ disclosure obligations.
It is difficult for a party to claim that communications on social media forums are private or confidential, because the duty of disclosure in court proceedings is normally overriding. Furthermore, the privacy policies of Facebook and MySpace clearly state that any information posted may become publicly available at the user’s own risk. It is likely that the court would take the view that an individual who voluntarily posts information on a social media site intends to share this information and therefore cannot later claim privacy.
There have so far only been a handful of cases in which disclosure of materials from social media sites have been considered by the courts. In the Northern Irish case of Martin v Giambrone, the Judge commented that “…anyone who uses Facebook does so at his or her peril”. The court went on to comment that material posted on Facebook was not confidential. Even if a party writes a post on Facebook that is only accessible to their “friends”, they do so in the knowledge that these “friends” can share this post with whoever they wish. It will be interesting to see how the court deals with this issue going forward.
It should be of some comfort to social media users that, subject to certain exceptions, the other party can only use the document disclosed for the purposes of the court proceedings in which it is disclosed. It cannot be used for other purposes, or be released to third parties.
When using social media, it is important to make use of the privacy settings to restrict access to your social media pages. You should be aware that any posts, even if only made to a closed group of friends, could potentially be disclosed during the course of court proceedings. When a dispute arises, one of the first things that the other party is likely to do is to gather information, and social media sites are a quick and easy way to do this. A hasty post on social media could potentially affect the outcome of a dispute. Seeking legal advice from a solicitor as soon as a dispute arises, or appears likely to arise, is always a good idea.
Catherine Mathews is Head of the Dispute Resolution Team in Exeter. Catherine specialises in commercial and contract litigation and has experience of many different forms of alternative dispute resolution, including mediation. She is listed as a leader in her field in Chambers 2018. If you are involved in a dispute and would like advice, please contact Catherine on 01392 210700 or drx@stephens-scown.co.uk.