Social media is the general term used to describe online platforms that foster social interaction. On social media (like Facebook, Instagram and Twitter), users are the primary drivers or creators of content. On the basis that social media has become the forum for people to update the world on where they have been, what they have done and what their food looks like – it may contain relevant evidence as to someone’s personal circumstances. Accordingly, social media has provided relevant evidence in many family law, workplace relations and personal injury cases. This article will answer some frequently asked questions about the social media discovery process in Australia.
1. What is Discovery?
Discovery is a pre-trial court-ordered (or mandated) process whereby a party must make available for inspection by the court and other parties to the proceeding all the relevant documents in its possession.
2. What is a Document?
A document is any record of information or data (whether in electronic form or hard copy). The definition is broad and can include social media profiles and posts.
3. When Will Discovery Be Required?
Discovery occurs when the court has ordered it or where required under the rules of court. A court will have the discretion to refuse to make an order for discovery if such an order is not proportionate or necessary.
4. How is Discovery Conducted?
Pursuant to a court order or a specific rule, the relevant parties must provide all documents that are directly related to the issues raised in the case.
This will often take place by exchanging lists of documents that are in that party’s possession or have been in its possession in the past.
If a party wishes to rely upon another party’s (or its own) social media profile, the other party will most likely need to provide a screenshot.
Upon provision of a list of relevant documents from the other party, a party can request to inspect and/or make a copy of any discovered documents.
5. What are Some Examples Where Social Media Discovery Occurred?
Below are some examples of when documents from social media have been discoverable:
Frost v Kourouche (2014) 86 NSWLR 214
A pedestrian brought a claim for damages for psychological injury against a driver who struck her. The pedestrian was a community leader and speaker. In making the claim, the pedestrian stated that since the collision, she had not done any public speaking and was unable to partake in social activities with relatives or friends.
Unfortunately for her, her Facebook and Twitter account outed her. She had in fact taken a holiday, attended a public forum and presented a paper for International Women’s Day. The driver managed to use the pedestrian’s social media profile as evidence.
Palavi v Radio 2UE Sydney Pty Ltd  NSWCA 264
Ms Palavi was warned that her social media photos will be subject to a discovery and was therefore asked not to destroy any material. She nevertheless deleted electronic information stored on mobile phones.
Due to the destruction of relevant material, the judge determined to strike out two of her claims completely. This decision was substantially upheld on appeal.
It is clear that social media profiles and posts can be considered documents that may be discoverable in a court proceeding. Parties should therefore carefully consider what they upload onto social media as it may have an impact on anticipated claims (or defences to claims) that they may wish to raise in the future.
If you have any queries regarding the use of social media in civil proceedings, please contact one of our specialist disputes lawyers on 1300 544 755.
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