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IP Quick Intellect

Think Twice Before You Post

Posted by on 23 Jul 2013

Have you ever posted or tweeted “in the heat of the moment” or vented your feelings via social media? I think most of us can admit to doing this. But have you ever stopped to think how this would affect you if you were embroiled in litigation.


Many judges worldwide have acknowledged not only the role that social media plays in day to day life, but the pivotal role it may play in court proceedings. Because social media has become such an intrinsic part of our lives it has led to a number of judges authorising access to a party’s social media pages for the purposes of discovery.


Discovery is the procedure whereby a party to proceedings is required to produce documents in its possession that are relevant to the court proceedings. This may include good old snail mail, facsimiles or emails. It also includes your social media posts – yes, your often emotional and very honest social media updates - no matter how “private” your settings are.


I am seeing more and more instances worldwide where judges have allowed access to social media and, in turn, lawyers are finding gold mines of evidence to win a case. It’s the new era of discovery.


In Canada, a defendant in criminal proceedings argued he never got drunk and was a responsible person, but his Facebook page showed otherwise – plenty of alcohol consumption and even bragging about it! Over in the US in a case relating to the sale of a yacht, the defendant claimed he had seen a certain third party only once since the negotiations for the yacht had begun and the two did not have a business relationship. However, a YouTube post showed a promo video of the two men, proving that they in fact knew each other well and had a business relationship. 


Given the candid use of social media in this modern era, it’s no surprise that more and more lawyers are requesting access in the discovery process and judges are allowing it. Just as certain rules were put in place in relation to electronic discovery, we will probably see something similar in the near future specifically in relation to social media pages.


Just remember, no matter how “secure” your settings are, nothing is ever “private” when it comes to social media. So before you type your next emotional rant - it’s simple, think twice before you post.



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