19 June 2019

Beware Your Own Social Media Posts

Mark O’Connor, Trent Johnson, Michael Coates
Mark O'Connor Compensation Lawyer
Trent Johnson Compensation Lawyer
Michael Coates Intellectual Property Lawyer

Imagine making a substantial insurance claim, only for the insurer to cite your own Facebook posts to deny the payout?

That’s the scenario playing out in NSW where a police officer who was medically discharged from the police service was bringing an application for disability benefits.

But her claim to how socially inhibited she was because of her injuries set the insurer on her trail and made some enquiries which suggest entries in her Facebook were inconsistent with her claim.

Brisbane compensation law specialist Mark O’Connor says 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.

This is happening in NSW where a court has upheld a legal Notice to Produce specific Facebook records of the claimant.

Mark O’Connor, a Director with Bennett & Philp Lawyers, says people need to realise that so-called ‘security settings’ on social media posts can mean nothing if lawsuits result.

People make posts on social media often not thinking beyond the moment and never realising it could one day be used in evidence in court against you, or even cost you your job,” he says.

In the NSW case, a police officer who was medically discharged from the police service was bringing an application for total and permanent disability insurance (TPD) benefits. She made reference in her claim to how socially inhibited she was because of her injuries.

“However the insurer made some enquiries which suggest entries in her Facebook were inconsistent with this claim. The insurance company delivered to the lawyers for the police officer a Notice to Produce requiring the production of significant information from her Facebook page.

“People often have TPD insurance attached to their superannuation policies. The claimant needs to show that they can’t return to the type of work for which they have skills, experience and education.

“The court found that the insurer had established a legitimate forensic purpose all in regard to the information/documents being sought under the Notice to Produce which would thus lead to the information having to be provided,” he says.

Mark says the brutal lesson from this is that people need to appreciate the dangers of posting information on Facebook.

Fellow Bennett & Philp compensation law specialist and Director Trent Johnson and employment law expert Michael Coates have previously also warned of the dangers of Facebook posts coming back to haunt people later.

A 2017 Brisbane District Court matter involved a woman claiming against her former employer. Both the plaintiff and defendant’s solicitors tendered evidence of Facebook posts made by a manager and the employee respectively.

Trent says this, and now the NSW matter, confirms the view that anything people post on social media posts could come back to haunt them at a later time.

Michael Coates, an employment law expert and a Director at Bennett & Philp, has said social media can play 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.

Trent says 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 says.

Mark says it is common now for police and lawyers to check a person’s social media pages if they are facing charges and Michael says employers often do it too during the hiring process.

“Privacy settings are not a wall. 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,” Mark says.

Court-ordered access is becoming a regular thing and security settings really mean 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,” Trent says.

The blunt reality is a social media post could be the evidence needed to win or lose a case.

“Sometimes the best strategy for social media is not to use it,” Mark says.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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