The use of social media by clients is increasingly causing problems for their lawyers and the legal system. Twitter, Facebook, Instagram and a wealth of other sites are now routinely consulted in the course of case preparation to glean information that can be used for and against the relevant party. Social media use is also giving rise to criminal and civil liability in and of itself. Below, Chris Bryden, Barrister at 4 King’s Bench Walk discusses more with Lawyer Monthly.
Vast numbers of people now use social media to communicate to the world at large. Most of these communications are open, and therefore available freely to third parties. Connecting a litigant to a social media handle is often not difficult, particularly where the account frequently posts photographs. Even private accounts are not safe, if a connection re-posts something that the original poster had thought was limited only to their followers. This open communication is often more frank and revealing than the user would ever dream of being to a stranger, particularly one whose interests may well be aligned against them in the context of litigation.
A good example of the serious consequences that can arise though unthinking postings on social media is the case of Nield v Loveday [2011] EWHC 2324 (Admin). This was an application to commit Mr. Loveday for contempt of court for lying in his witness statement. Mr. Loveday had been injured in a road traffic accident. He brought County Court proceedings. He exaggerated his injuries, which was discovered both by surveillance, which took the form of DVD footage, and a trawl of his social media account. Mr. Loveday had claimed to have travelled on holiday to Lake Garda by air, as he was in a wheelchair. However, Facebook photographs showed that Mr. Loveday and his wife had in fact travelled by car, he doing all of the driving. Mr. Loveday was found to be in contempt of court.
Social media also frequently finds itself centre stage in cases involving family disputes. In applications for Non-Molestation Orders preventing a party from intimidating, threatening, harassing or pestering another, posts from Facebook or Twitter often are exhibited to witness statements. Photos of expensive meals or holidays, or in respect of relationship status, are used in divorce and financial remedy proceedings. The discussion of the family proceedings over social media can be a breach of the provisions of the Family Procedure Rules 2010 requiring privacy. Evidence of a wild or hedonistic lifestyle may be used to suggest that a parent is not fit to be the resident parent.
Social media posts can also be actionable in and of themselves. Very recently, Omega Mwaikambo pleaded guilty to two offences under section 127 of the Communications Act 2003 and was sentenced to three months’ imprisonment. This resulted from his posting on social media photographs of a partially covered body following the fire at Grenfell Tower. Previous convictions have arisen from threats made against, amongst others, the MP Stella Creasey.
Social media misuse can also arise in an employment context. In Teggart v TeleTech [2012] NIIT 00704_11IT (a Northern Ireland case) the Claimant was dismissed for gross misconduct after posting obscene and sexual comments about a fellow work colleague on Facebook, the colleague having discovered this and complained. The Tribunal held that the dismissal fair even though the Respondent’s policy not expressly covering personal use of website. But in Witham v Club 24 Limited trading as Ventura 1810462/2010 an employer was concerned over comments made by the Claimant on Facebook that it had discovered. The company handbook said posting inappropriate comments on Facebook constituted misconduct, but did not spell out the consequences. The dismissal was found to be unfair as whilst the comments were misconduct, the employer did not consider alternatives such as demotion.
Defamation is another area in which social media is having a substantive impact. A high profile case from 2013 was the action brought against Sally Bercow by Lord McAlpine (McAlpine v Bercow [2013] EWHC 1342 (QB)), following comments which she had made on Twitter. Lord McAlpine also brought claims against numerous other Twitter users. Tugendhat J found that the tweet was libellous, with damages and costs therefore being payable.
Social media as a phenomenon is not going away. It is likely that its use in litigation will become ever more embedded. It is now standard for lawyers to interrogate Google and social media for evidence that will help (or hinder) their case. Third party investigatory agencies commonly advertise their services in carrying out more in-depth enquiries. Such actions understandably give rise to privacy concerns, but, as the vast majority of social media evidence that can be applied in litigation is freely available, having unthinkingly been posted, it is likely that for the time being at least, social media will continue to change the way lawyers litigate by providing a further stream of evidence to support or undermine their clients’ cases.
