Australia: Beware the social media posts that could come back as evidence to haunt you

So you made a frivolous post on social media one night not thinking beyond the moment and never realising it could one day be used in evidence in court against you, or cost you your job.

Brisbane lawyers Trent Johnson and Michael Coates say increasingly, social media posts are being used as evidence in compensation and employment law matters because courts can and do order people to disclose the contents of their social media accounts.

Mr Johnson, an Accredited Specialist in injury compensation law and a Director of Brisbane law firm Bennett & Philp Lawyers, said a past case before the Brisbane District Court where a woman was claiming against her former employer, illustrated the increasing reliance placed on social media posts as evidence.

Both the plaintiff and the defendant's solicitors tendered evidence of Facebook posts made by a manager and the employee respectively. Mr Johnson said it confirmed the view that anything people post on social media posts could come back to haunt them at a later time.

Mr Coates, an employment law expert and a Director of Bennett & Philp Lawyers, said social media played a role in employment law disputes too, especially if employees posted confidential workplace information on a social media forum or badmouthed fellow workers or the boss.

Mr Johnson said someone uploading critical remarks about others on social media could also risk facing a defamation action.

"A post on Facebook is deemed to be effectively publishing the remarks, whether the post is publicly visible or confined to a closed group. Whatever is posted is vulnerable to being re-posted and shared by others," he said.

Mr Johnson recalled a past court matter where the court found a plaintiff's evidence was considered unreliable because of exaggerations she had made in posts about her employment and lifestyle on her social media.

"The court found she was lacking in credibility because of her false claims on social media. If you're posting items about your life, make sure they are accurate. If not the claims could come back later to your detriment," he said.

"If you brag about partying all weekend and chucking a sickie from work for a long weekend it won't endear you to an employer and could cost you a job," he said.

But how do courts get access to a person's private information on social media?

"Even if your privacy settings are configured to just family and friends, the court has the power to demand a party be provided with access to your social media accounts if it is believed those accounts could hold evidence relevant to a claim," Mr Johnson said.

He said court-ordered access was becoming a regular thing and security settings really meant nothing.

"In effect, the court can require you to disclose or provide access to or accept a friend request from a party wishing to sight your social media posts. This applies across the spectrum to all social media accounts," he added.

Mr Coates said people should take the view that anything they post on social media could one day be made public with far wider consequences than imagined.

"Social media is a powerful communications medium but it can also prove to be your undoing later if you say one thing on social media but claim another thing in court," he said.

Mr Johnson said in compensation matters especially, parties were keen to see what their opponents may have posted because a social media post could be the evidence needed to win or lose a case.

"In other words, think before you post, about what you are saying and who could potentially see it. If you don't want anyone to know, then keep it to yourself," he said.

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