LAW IN PRACTICE
Social media, privacy and evidence The use of images or other information gleaned from a social media account to contradict a personal injury claim in the courts creates a number of issues around privacy and confidentiality, many of which have not yet been considered by the courts here. ■ it may be publicly available by being visible on the public part of the person’s social media profile; ■ if a photograph was taken by someone else,1 or includes someone else, then that third party may well have uploaded it to their own social media account; or, ■ it may be in the ‘private’ section of the person’s social media account, and theoretically unavailable other than to their social media ‘friends’.
Michael O’Doherty BL The core issues Three issues arise in respect of the adducing of such material:
Introduction
1. Is evidence gleaned from the public section of a claimant’s public social media
The current topicality of unmeritorious personal injuries claims, in which the accuracy
account generally admissible, and can the opposing party simply produce the
of a claimant’s description of their injuries is cast into doubt by the production of
evidence to contradict sworn testimony of the claimant, without the requirement
contradictory evidence from social media, raises several interesting questions in respect of the manner in which such evidence is introduced. In a typical scenario, a claimant, purporting to be the victim of some form of accident, attests to the impact
to notify them of their intention? 2. Does the fact that such material is concealed behind the user’s privacy settings alter the answer to the previous question?
of the injuries they sustained on their quality of life, usually to include reduced
3. Can a claimant be ordered to discover material from the private section of their
mobility, constant pain and/or an inability to pursue a previously favoured pastime.
social media account on the basis that it may be relevant and necessary, even if
The claim fails, however, when their sworn testimony is contradicted by evidence
the applicant has no evidence that such material exists?
adduced by the opposing party, often in the form of photographs that reveal them
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to be lifting heavy objects, performing strenuous dance routines, or taking part in
Right to privacy for social media users
athletic activities.
A preliminary issue, central to much of the discussion on this subject, is the right to
In some cases, such evidence will be widely available, as the photograph may have
privacy in this jurisdiction. While the right attracts Constitutional protection under
appeared in the press, or on an organisation’s website, and can be located by the
Article 40.3.1, it is not an unqualified right.2 This is especially true when privacy is
input of the claimant’s name into an internet search engine. In an increasing number
claimed so as to conceal behaviour of an unlawful nature.3 Most significant of all,
of cases, however, the material is obtained from social media, most commonly the
perhaps, is that privacy as a legal right, and the ‘privacy’ settings of a social media
claimant’s own account. Such material may exist in one of three circumstances:
account,4 are two entirely different concepts and, as set out in the case law, they
THE BAR REVIEW : Volume 25; Number 1 – February 2020
