As social networking usage grows lawyers are beginning to leverage communications on social networking sites – including Facebook and Twitter – as a source of evidence in court. Tweeters and those posting to Facebook must therefore be fully aware that what they publish is discoverable.
Just as emails are discoverable – and if deleted can easily be traced – caution should be exercised when a person communicates on Facebook/Twitter. Not only is such communications discoverable but may also qualify as a defamatory statement and therefore actionable.
In two court cases in America the communications on MySpace surprised litigants. In the first case a young woman claimed damages for an injury sustained in a car accident. She exaggerated her injuries and was confronted by her MySpace pictures of her skiing in the Swiss Alps. In the second case, an accused in a criminal matter pleaded guilty to aggravated assault with a gun.
At the sentencing stage his attorney in mitigation endeavoured to portray the accused as a peaceful man who had found religion. However, the prosecution found a picture of the accused holding a gun on the accused’s MySpace page as well as his comments.
The photo was used as evidence against the accused.
The message is therefore that the red light should flicker when players on the various networks publish on their page communications which may find its way to court and may be damaging.
Director, Dispute Resolution, Cliffe Dekker Hofmeyr
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