Social media platforms like Instagram and Facebook have become embedded in the lives of millions of Australians. People use them so regularly they share their innermost thoughts, opinions, pictures, and experiences there, often without giving much thought to the potential legal consequences.

In recent years, the question of whether uploads to social media in Australia can become part of legal proceedings between two parties to a dispute, even if their personal pages are set to private, has become more common and featured in a number of court cases. In family law matters, workplace disputes, personal injury and defamation cases, among others, you could be forced to disclose your social media posts and have them used against you in a dispute or proceeding provided the posts are relevant to the issues in the case.

This article looks at some Australian case law and legal considerations dealing with this of-the-moment issue.

The privacy-setting myth

Many users assume that by setting their social media accounts to ‘private’, they are safeguarding their posts from becoming part of any legal proceedings. However, the distinction between public and private is not as clear-cut as it may seem. Recent case law in Australia highlights the importance of understanding the limitations of social media privacy settings.

Case 1: In Glen Stutsel v Linfox, a truck driver claimed he was unfairly dismissed for posting a number of racially derogatory, discriminatory and harassing comments about his managers on Facebook. In describing his actions as part of his dismissal, the company said Mr Stutsel’s posts were ‘open to the public’. Mr Stutsel insisted his Facebook account had been created with maximum privacy restrictions and the posts were not able to viewed by just anyone.

The Fair Work Commission found Mr Stutsel had been unfairly dismissed by Linfox, with the company’s lack of a social media policy for employees a key reason for the decision. The company subsequently lost two appeals against the decision. In the appeal dismissed by Fair Work Australia, the commissioner took into account Mr Stutsel’s ‘limited understanding’ as to the privacy of Facebook communications.

Case 2: In a more recent case from 2019, Gavan v FSS Trustee Corporation [2019] NSWSC 667, it was again confirmed by the courts that Facebook and other social media posts may be disclosable in legal proceedings and admissible as evidence, provided they are relevant to questions before the court and regardless of a person’s privacy settings or intentions in posting the material.

In this case – a claim for Total and Permanent Disability (TPD) benefits by Ms Gavan, the plaintiff – she challenged a Notice to Produce ‘all records’ from her Facebook account, whether the account was active or not and including posts, status updates, check-ins, messages, photo uploads, ‘tagged’ photos and comments made by and/or ‘tagging’ Ms Gavan. The material was otherwise inaccessible because of Ms Gavan’s privacy settings.

Ms Gavan claimed she had suffered severe psychiatric and physical injuries which meant she could never be engaged in employment for which she was reasonably qualified and largely confined her to home. The defendant argued the material from her Facebook account showed Ms Gavan’s reported symptoms were inconsistent with her social activities and travel. The court decided the private Facebook material was relevant to the issues in question and ordered Ms Gavan to produce the requested documents.

Case 3: A related issue is the deletion or destruction of social media material by a person who becomes aware it may be discoverable as part of legal proceedings and used as evidence against them. In Palavi v Radio 2UE Sydney, the plaintiff sued a Sydney radio station for defamation for imputing that she ran a brothel and arranged sexual liaisons between NRL players and underage girls. In one Facebook post Ms Palavi indicated she would delete images on other platforms and devices she knew might be used as evidence against her claims. This post was used in evidence to support the conclusion that she had deliberately deleted the images and the trial judge subsequently struck out two of the imputations in the defamation claim.

Key themes and the need for expert legal advice

From cases dealing with the question of whether social media posts are disclosable in legal proceedings, even if they were made privately, a couple of key take-outs emerge.

Firstly, a strong relevance test applies – the social media content a party to legal proceedings seeks to rely on as evidence must be relevant to the case at hand. The onus is on the applicant to the court to demonstrate that the social media posts are necessary to assist resolution of the case as quickly and efficiently as possible.

But courts also have a discretion not to make an order for discovery of social media material if it is not considered necessary or proportionate. The court is careful to balance a person’s right to privacy with the need to uncover material that is relevant to a fact in issue in the case.

The conclusion is that even if users activate the highest privacy settings on their social media accounts, the material they post may still be discoverable and admissible in legal proceedings should it be relevant to the case. Furthermore there is the risk of inadvertent disclosure of private information by the platform itself when it makes technical changes to the site – this content may also still be disclosable. Another issue arises where a person deliberately destroys or deletes social media posts, fearing they may become discoverable in legal proceedings – doing so can amount to contempt of court.

If you’re unsure or worried about whether your social media posts may become part of a personal injury compensation matter or some other legal action, contact our expert team of personal injury lawyers at Lifestyle Injury Lawyers today for further advice.