Facebook content creeping up as evidence in lawsuits
The Canadian Press
Published Sunday, May 10, 2009 12:05PM EDT
ST. JOHN'S, N.L. - Lawyers in Canada are increasingly warning their clients about the perils of posting information on social websites such as Facebook after a small but growing number of cases faltered because of damning messages and photographs.
Last month, a Newfoundland man's lawsuit was largely foiled, partly because of Facebook postings that contradicted his claims.
Dennis Terry filed the suit after suffering whiplash from two car accidents in 2001 and 2003. In addition to other losses, he argued the injuries harmed his social life, claiming his friends stopped phoning him to go out after he repeatedly declined their invitations.
At one point, Terry testified he had trouble playing pool -- a pastime he often enjoyed with friends -- because he was unable to bend over the table after making a couple of shots.
But after defence lawyers produced evidence from Terry's Facebook profile that suggested a life brimming with activity, provincial Supreme Court Justice James Adams concluded the plaintiff exaggerated the toll his injuries took.
"He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis," Adams wrote in his April 17 ruling.
"I find it incredible that Mr. Terry's social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little social life. Without this evidence, I would have been left with a very different impression of Mr. Terry's social life."
After defence lawyers confronted him with the Facebook evidence, Terry closed his account.
He was awarded $40,000 in general damages and suffering, but the judge rejected his other claims that sought up to $1.3 million.
Terry and his lawyer declined to comment on the case.
It's one of a few across Canada that highlights how information posted on Facebook or other social networking sites, including MySpace and Twitter, can come back to destroy a case under the scrutiny of a courtroom.
In February, Ontario Superior Court Justice David Brown ruled that a man suing over injuries from a 2004 car accident must submit to cross-examination from defence lawyers about postings on his Facebook account, including content not available to the public.
"To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial," Brown ruled.
Brenda Hollingsworth, a personal injury lawyer in Ottawa, says uncovering as much information as possible about potential clients has become part of her vetting process before taking on cases.
"I now routinely Google my own clients just to let them know what's on there and to make sure that I'm not surprised," Hollingsworth said.
"As these decisions come out, lawyers clue in that we have to warn our clients about this, and I'm willing to bet that (for) most personal injury lawyers, that's part of their opening pitch to prospective clients: `Don't be an idiot about what you put on Facebook.' "
But online scribbles and pictures can be an unfair evidentiary tool if used out of context, she said.
"You may have someone after an accident who goes to one special occasion and swallows a bottle of Tylenol to go, and then all of a sudden that one three-hour night five years ago becomes blown out of proportion," she said.
"These pictures get blown up for the jury and they've got you with a beer in your hand, sitting in a lawn chair and no amount of explanation can really shake that image."
The increasing use of information on social networking sites as evidence underscores the importance of honesty and managing one's online persona, Hollingsworth said.
"The bottom line is if you're scrupulously honest, you can't be tripped up by a photo."