Did you know that what you post on Facebook can be used as evidence in a lawsuit?

According to a non-peer-reviewed study of 721 million active Facebook users, released by Facebook in collaboration with the Università degli Studi di Milano, on Facebook, there is only 4.74 degrees of separation rather than the familiar adage of “six degrees of separation” between any two people on Earth.

In light of this ever increasing connectivity (at least over the internet) that social media platforms such as Facebook, Twitter, Google+, LinkedIn, etc. offer, we should be ever more vigilant about the content we choose to post.

Curious about the implications of Facebook on the landscape of litigation in Canada, I conducted a search for the number of cases on the Canadian Legal Information Institute’s website (CANLII) and found 555 hits for decisions that contained the word “Facebook”. Upon further research, I came across an article published in 2009 in the Manitoba Law Journal titled When “Friends” Become Adversaries: Litigation in the Age of Facebook by Ronald Podolny that examined a number of Canadian decisions concerning evidence from Facebook.

Based on this article, it appears that recent cases in Canada concerning evidence posted on social networks leave it beyond dispute that, particularly in family law or personal injury actions, Facebook evidence (and other content posted on social networking profiles), if relevant to a lawsuit, is likely to be admissible as evidence.

I have summarized some of the insights I have garnered from this article below:

Family Law

Facebook evidence has been accepted by courts in support of allegations of adultery or bad judgment. For example, in one case, photos posted of a plaintiff with a male holding her in an embrace were accepted as evidence in support of a defendant’s claim that the plaintiff had committed adultery. Facebook has also been used as evidence of failing to act in a child’s best interests. In one such case, where a mother produced transcripts of a father’s conversations on Facebook as evidence of his participation in the drug trade, the court refused unsupervised access  due to concerns for the child’s safety.

On the other hand, the weight of Facebook evidence, as with all other evidence, depends on the particular facts and circumstances of the case. For example, in one case a court held that a mother’s “salacious photos on Facebook” had no bearing on her ability to care for the children, and was thus irrelevant for the determination of temporary custody and access.

Torts

Numerous cases in the personal injury field have, likewise, considered the weight that must be assigned to photos and verbal comments posted on social networking sites. The decisions endorse the admissibility of Facebook evidence to assist the courts in evaluating the degree of a plaintiff’s injuries. For example, in some cases where a defendant produced photographs posted on Facebook showing a plaintiff enjoying certain activities as evidence that the plaintiff suffered no lasting injuries. However, this appears to depend on the severity of the injuries alleged by the plaintiff and the nature of the activities enjoyed in question.

Criminal Law

Criminal law is another area in in which Facebook evidence has found increasing acceptance; however, similar to courts consideringFacebook evidence in other areas of the law, courts hearing criminal cases weigh the value of Facebook evidence against other considerations, including users’ privacy interests and nature of the forum. In one case, the accused’s postings on both his own as well as the victim’s MySpace page were held to substantiate the allegation of uttering a death threat. While in another case, a Facebook log-in assisted the court in retracing the victim’s location shortly before the murder. However, in another case, where the comments posted on Facebook were made without the intent that the subject of the message would ever be made aware of them, an accused was not found guilty of uttering threats despite Facebook postings which contained content that threatened Children’s Aid Society employees.

Thus, in today’s increasingly connected society, one should be careful of what one posts on Facebook.

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