Using social media in civil litigation

Using social media in civil litigation
typingThe increasing use of social media within society has led to it being used as a tool in personal injury cases. Gordon Exall, barrister at Zenith Chambers discusses the implications for defendants and claimants.

How is social media affecting the personal injury landscape?

Basically, it is being used by defendants to investigate the credibility of claimants so if the claimant says ‘my life is ruined’, ‘I can't walk’ or similar but their Facebook page shows pictures of them at a party or doing other active things then those are not going to go down well in trial with most judges.

What guidance is offered in recent case law?

Social media, particularly Facebook, has been used in cases going back four or five years and it is becoming more prevalent.We’ve seen recent cases which show Twitter and Facebook being important in challenging the credibility of witnesses and in particular in the case of Saunderson & Others v Sonae Industria (UK) Ltd where one of the claimants was cross-examined over a Twitter conversation which could be interpreted that claims made by him would be fraudulent.In another area of personal injury, staged car crashes are big business and at Dublin Circuit Criminal Court last year a couple pleaded guilty to attempting to dishonestly by deception cause a loss to FBD Insurance. In the case, the defendants who had previously made insurance claims for injuries following a car crash and had claimed that they didn’t know each other were found to be known to each other through Facebook. The insurance company had found that the defendants appeared in each other’s profile pictures. Equally important is the insurance case of Cirencester Friendly Society v Parkin.. The defendant in this case had made two claims against an income protection insurance policy. In the first case the Financial Ombudsman had made the building society pay up and the defendant had been awarded in the region of £19,000. On the second occasion, the claimant said no and brought this action against the defendant. The defendant was claiming that he was too ill to work and yet on YouTube there was a video showing him refurbishing and racing a sports car in Cyprus.There’s a wonderful quote in this case from Judge Seymour who said: ‘Nemesis overtook from Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media.’I think that’s a very telling quote and I think people forget that other people can read their social media accounts.In many cases, and particularly in test cases such as the Sonae case, one of the first things the defendants will do is to look at people’s social media. The defendant would be almost negligent not to.

 

Should lawyers be offering advice to their clients on the appropriate use of social media?

Lawyers should give the advice that everything on social media may be disclosable and that defendants may be looking at it. They have to be very careful though—there was a case in the US in 2013 (Allied Concrete Co v Lester) where the lawyer advised the client to clean up his social media sites. Although Lester was initially awarded very high damages, he and his lawyer were later fined significantly. So there is a fine line between telling people that what you put on Facebook can be followed and advising them to start altering things. The alteration of pre-existing documents (and Facebook pages are documents) should never be done.

What are the disclosure requirements?

You’re under a duty to disclose anything relevant and the claim to ‘privacy’ is a difficult one. Usually the duty of disclosure to the court is paramount. Pages and entries on social media are, ultimately, ‘documents’ like any other.

Interviewed by Fran Benson.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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