Facebook in the Legal System
Facebook, like bad weather, is everywhere. Nothing new there. What is new is how it’s appearing in the legal system. When Facebook is used as a tool for revenge it may lead to litigation. It can become a sword to undermine an opponent. It can even be a force for good for police and courts.
In a racy case being played out in the Federal Court in Melbourne, Australia Facebook was used as a sword to inflict pain that led to a high profile lawsuit. Then in the same case Facebook was used by the court to summons the inflictor to appear.
In Paris police have recently invited witnesses to provide information on police Facebook pages to help solve hit-and-run cases in the notoriously crash-prone city.
In the British Columbia Supreme Court plaintiffs are being confronted with photos and videos they posted on Facebook. Defendants are producing Facebook images that depict a healthy, happy, hearty plaintiff quite different from the very same plaintiff claiming pain and suffering ruined their life.
The Melbourne case caught my eye. Indeed it caught virtually every eye in Australia. It had all the ingredients befitting a Rupert Murdock news story, a handsome leading man, a scorned woman and plenty of nude photos. However what really drew my attention was the role played by Facebook. It was the medium of choice for a scorned 17 year old girl. In a fit of pique she used her Facebook page to post a photo of a nude and very well known football (known as “footie” down under) star.
The photo of the star was taken by his friend. Exactly how the photos passed from the friend to the 17 year is the subject of some dispute and possibly a police investigation. Regardless of how the 17 year old got a hold of the photo, she posted it on her Facebook page. That brought an immediate response from the footie club. They launched an action for injunctive relief in the Australian Federal Court. The club wanted the photo taken down and an injunction to prevent further postings and to deliver up any other photos she had.
The court issued an interim injunction in absentia. She apparently became aware of the proceedings for she defiantly threatened on Facebook that she was ready to post more nude photos as a reprisal for the lawsuit.
The plaintiff club wanted her before the court immediately but personal service was not possible as she’d left town. In the meantime concerns grew about more Facebook postings.
To solve the problem of finding the girl the court turned to Facebook. The evidence showed the girl was accessing Facebook frequently judging by her constant postings. Australian Federal Court Justice Marshall ordered substitutional service be made to her Facebook page. That worked. The girl appeared a few days later as ordered.
She used Facebook page as tool to inflict pain, the court responded by using Facebook as a pain reliever. When served via Facebook she appeared. As a footienote, she went beyond the call of duty by also appearing at the star’s footie practice with her paparazzi entourage.
Seeing this drama unfold in Australia made me wonder what impact Facebook was having on British Columbia courts, in particular I was interested to see if Facebook had come up in British Columbia Supreme Court cases.
To my surprise Facebook had been referred to in 37 reported cases on the BCSC website. The first instance was in January 2008. In that year there were five references to Facebook. In 2009 that more than doubled to 11. In 2010 it nearly doubled again to 21.
The 2010 cases reveal a growing trend. Facebook can be a basis of court applications, a place to mine material for cross-examination and a great source of embarrassment to litigants.
In a number of the cases Facebook was used to gather ammunition to cross-examine the plaintiff in personal injury motor vehicle accidents. Three cases stood out.
Case 1: the plaintiff claimed his injuries impaired relations with his kids. He was then confronted with his Facebook photos showing him frolicking happily through a pumpkin patch with the kids. No sign of pain in that pumpkin patch.
In case 2 the plaintiff had posted smiling photos of herself enjoying social occasions, participating in a 10 km. charity run and to top it off snowboarding in Whistler. While the judge found “even unhappy people smile when photographed” the Facebook photos did confirm that her enjoyment of life was not completely curtailed by the injuries.
And in the third case the plaintiff was confronted with a Facebook video showing him flaunting his athletic prowess in the pool where he performed a daring manoeuvre that even his fully able-bodied and uninjured friend couldn’t do.
In 2010 Facebook also came up in several family law cases. One litigant was found to have used Facebook to malign and embarrass his spouse. In another case a mother applying for custody pointed to Facebook photos of the father involved with marijuana. The father had been portraying himself as a responsible parent living a clean lifestyle to support his claim to custody. While the judge didn’t deny custody there was an order imposed that “the father shall not use drugs in the presence of the child”.
Facebook is a double edged sword. On the one hand it can land you at the wrong end of a lawsuit or it can undermine a client’s credibility. On the other it may lead to an unexpected benefit, a sword with which to skewer your opponent.
What can be learned from all of this?
Potential litigants should only post things on Facebook that would make their mom proud. The lesson for counsel: check your client’s Facebook pages for embarrassing evidence.
For discovery purposes, pictures in your computer and on your Facebook site are no different from pictures in a drawer in your desk. If they are relevant they must be produced. The case law is tending to the position that courts will not order production of private FB pages on pure speculation that there might be something there, or an order producing the entire content of a party’s hard drive. But if there is a good reason to believe there is something there, then such an order may be made, just as it might for evidence on paper.
Still, I think FB (and other social media) are for the first time making the courts deal expressly with whether there is a balance between the traditional full rights of discovery and the party’s privacy.
Various legal ethics bodies have decided that it is unethical for lawyers to try to friend the adverse party – or to hire someone to do so – in order to access private pages on FB. That’s not a surprise, given the existing rules that one cannot misrepresent oneself to an adverse parties to interview them, for example.
I am a bit surprised by the Aussie story, because I had thought that FB had a rigorous policy against nudity, and that even non-nude racy pictures would be taken down if someone reports them. I confess to not having tested this myself or even examined the terms of use in sufficient detail to be sure.
In one training session organized by the National Judicial Institute, a judge was telling me about a criminal case anecdote I found both informative and entertaining. When the prosecutor put the defense witness on stand, he started asking about her use of Facebook, gradually leading up to the point of asking “and were you not posting on Facebook minutes before your testimony in court today?” to which the answer was yes… The prosecutor made sure the court (and jury) was well aware of those posts in which she conveyed clear contempt and bias in a way that destroyed her credibility as a defense witness..!
So, lawyers have to get into the habit of looking up Facebook profiles, many of them still have default security settings which allow everyone to see one’s “wall”, as in the witness case, above…