In today’s world of the internet, many businesses use social media as part of their marketing and communication, and whilst the vast majority of businesses will do so with no problems, if you ask Commercial Lawyers, they will point out that social media needs to be used with considerable caution.
The reason is, contrary to the belief that most people have of social media merely being a ‘bit of fun’, or where businesses can seek to engage with their customers, it can also be used against you, and your business, or conversely, used in your favour.
Now we are not suggesting that Facebook, Twitter, or Instagram might be out to get you, and let’s be honest the people who own these social media giants have more to deal with than trying to make life difficult for local businesses. Instead, it is you, or those that post your business’s behalf, that can unwittingly be the one to create the problems.
As far as the legal position stands at the moments in Australia, there is an increasing belief that words, images, sounds, and videos posted on social media, can be used every bit as effectively as evidence, as the types of evidence currently presented in court.
An example of this is a case where a company used an individual’s social media posts to argue that the physical and psychological injuries they claimed to have suffered in a car accident, were not as significant or debilitating as they were suggesting in court.
The social media posts showed the claimant taking part in social events, and online gaming. Their counter-argument to the claimant was that if the injuries were significant and had caused them as much harm as claimed in court, they could not possibly have been able to take part in the activities, as seen in their Facebook posts.
The court obviously agreed with this, as the outcome of the case was significantly different from the one that might have been, had the social media posts not been presented to counter the claimant’s evidence.
This has great significance for any business that might find itself in court, either due to them making a claim, or someone making a claim against them. Now, not all cases will be as blatant as someone claiming injuries and then seen to rubbish their own claims on social media, but the principles are the same.
Courts will now consider evidence from social media, however, the same standards will apply to it, every bit as much as any other kind of evidence. It must be relevant to the case, it needs to be authentic, and it cannot be hearsay.
In other words, someone posting on social media saying that an event has happened is not the same as the event they are describing actually being seen on video and corroborated by witnesses.
This has significant implications for individuals, but even more so for businesses. As we have noted in the case described above, social media was an aid to the business being claimed against.
However, the opposite could apply where a business is presenting evidence in court, but that evidence is compromised or even shown to be completely false, due to posts that have been made on its behalf on its social media accounts.
The truth is whilst social media has many wonderful advantages for businesses, it must be used in a considered way, with some foresight as to the fact that it can be used as evidence in court.