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‘In your face’

25 Jun 2019 / TECHNOLOGY Print

In your face

Have you been seriously injured in an accident that wasn’t your fault? Yes? Well then, you probably shouldn’t publish photographs of you taking part in a triathlon on your Facebook page if you’re going to take a claim.

Social media has gotten a lot of ‘likes’ in Ireland. In June 2018, it was reported by Irish Tech News that 71% of Irish people use Facebook and Instagram.

As a result, evidence taken from social media is increasingly being shared – in the courts. Social-media evidence is now being relied upon in everything from murder cases to routine personal injuries cases. Practitioners, take note.

Exaggerated

Insurers now hire investigators who search through plaintiff’s social media for evidence that might show their injuries are fraudulent or exaggerated. Claims for emotional damage or a reduced social life may be defeated if someone’s Facebook page shows them enjoying life, taking part in social activities, or generally having a good time.

Damages can be reduced or claims dismissed entirely where a supposedly chronically injured plaintiff’s Facebook page shows them taking part in sport or some other types of strenuous physical activity. The days of investigators needing to get a warrant to show that someone who claimed to be disabled had been wrestling alligators in their spare time are over, now that people are prepared to broadcast it to the world themselves.

In one high-profile Circuit Court personal injuries case, evidence was put to a plaintiff that he had taken part in the Gaelforce West Triathlon five weeks after he supposedly suffered incapacitating injuries. Gaelforce West is a one-day adventure race that involves kayaking, a 58km cycle and a 15km run up Croagh Patrick. His response was: “Oh, I see you’ve been looking at my Facebook.” His claim was dismissed because of this evidence.

In Prior v Dunnes Stores – a slip-and-fall case – a YouTube video of the plaintiff performing an energetic dance routine was admitted, as were pictures from her Facebook page of her holding bowling balls in each hand and punching a virtual-reality boxing machine. As a result, the court was of the view that she did not have serious ongoing problems, and her damages were reduced.

Dismissed

It was reported in December 2015 that a woman had her personal injuries claim dismissed as a result of pictures taken from her Facebook page.

She had claimed she was never a member of a gym, and had to give up work due to the pain of her injuries. Photos from her Facebook page showed her after having climbed to the top of Bray Head, exercising in a gym, and even posing in a bikini at international body-sculpture competitions.

However, in Cahill v Glenpatrick Spring Water Company Ltd, the defendants tried to rely on photographs taken from Facebook of the plaintiff at a theme park, where patrons are advised not to ride with a back or neck injury, or ailment or pre-existing condition. The court here found that the plaintiff had not exaggerated his injuries.

Facebook can also be used by the defence to prove relationships between plaintiffs. In 2015, David Ward and Lyndsey Ivory were both sentenced to two years imprisonment, with one suspended, after they took personal injuries actions against FBD insurance, where they denied knowing each other. An investigation on their Facebook pages revealed they were, in fact, married.

In other unrelated cases in July of 2018, six joined cases were thrown out by Judge Patrick Quinn when it was revealed that the parties involved were friends on Facebook and had been involved in similar road-traffic claims previously.

As yet, there is little jurisprudence on proving social-media evidence in civil cases. In criminal cases, the authorities can rely on the provisions of the Criminal Justice (Mutual Assistance) Act 2008 in order to obtain Facebook data from America.

This was done in DPP v Moran, where the defendant made admissions to murder in a private Facebook conversation. Unless a civil action is joined to a criminal case, then this act cannot be relied upon in civil cases.

Civil cases

Proving Facebook evidence in civil cases may be something that the courts will send a direct message about in the future. Anyone can set up a Facebook page under a false name, which may make such evidence difficult to authenticate.

This issue is less likely to arise in cases where photographs and videos are taken from Facebook. If a photo clearly shows a supposedly injured plaintiff wrestling bears or climbing Mt Everest on his holidays, then its source is not likely to be an issue.

In cases where the defence wants to rely on something that is written, such as a status, message or comment, then this may be harder to prove.

In Danagher v Glantine Inns, the plaintiff claimed he had developed post-traumatic stress disorder (PTSD) after he was spear-tackled by security staff at a nightclub and then dragged out by the neck. He claimed that, as a result, he could not go out or take part in sports.

His Facebook page listed his favourite activities as playing hurling, rugby and Gaelic football, and his favourite music as “anything that will get me dancing and hitting the roof”.

The judgment also quotes the following excerpt from his Facebook page: “Ya I tink we mit be going out alrite, ul probably come across me drunk on a dance floor somewhere during d night anyways.” He had even taken part in a parachute jump after the injury. His claim was dismissed as a result.

There are a number of ways in which such Facebook evidence can be proven. The most obvious way is having the witness accept in cross-examination that it is theirs. In Busher v Altona Taverns Limited t/a The Old Forge, a slip-and-fall case, the High Court noted that photos taken from Facebook were not proven, but that the plaintiff accepted that she was shown ice-skating twice.

Complicated

In cases where a witness does not accept that the evidence is theirs, the situation is more complicated. There is some American jurisprudence on this.

Circumstantial evidence could be relied upon to prove this on the balance of probabilities, including whether the evidence has the witness’s personal details, such as name, date of birth, address, photograph, location, links to other social media, or any other characteristics that could tie it to the witness in question.

Social-media evidence is unlikely to be excluded on the basis of privacy settings. In Gervin v Motor Insurers Bureau of Ireland, it was found that the plaintiff’s suggestion that the evidence had been obtained in breach of her privacy settings was not credible, since, at the relevant time, she did not have a privacy restriction on her Facebook account.

Settings

In the Northern Irish case of Martin and ors Gabriele v Giambrone P/A Giambrone & Law, it was found that privacy settings on a Facebook post did not matter in relation to admissibility. Here, the claimants were suing their former solicitors.

After a hearing, the defendant posted the following on his Facebook page: “They thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.”

The claimants then sought a Mareva injunction to prevent him from ‘leaving them with nothing’. A Mareva injunction may be granted by a court to restrain a defendant, who is not within the jurisdiction, but who has assets within the jurisdiction, from removing these assets, pending trial for a debt due.

In this instance, the defendant sought a court order that this Facebook post would be inadmissible in both the Mareva injunction and the main proceedings relating to the failed investments. His argument that they were confidential because of the privacy settings was dismissed.

Warned

Social-media evidence is now being regularly used in personal injuries cases. Plaintiff clients should now be warned, as a matter of routine, that they may find themselves with followers they don’t want, and about the effect this could have on their case.

Otherwise, a budding influencer may find that the only things liked and shared are shared with the courts. Nobody wants to influence their case into an order for costs against them.

Matthew Holmes
Matthew Holmes is a Dublin-based barrister