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Can your social media page be used in evidence?

Using information from social networking websites in litigation is expected to rise, with current generations publishing more and more about themselves online.

With the enormous surge in popularity of social media websites such as Facebook employers are nervously watching how the use of these websites will impact workplace relations.

What is the status of Electronic Evidence?

The Evidence Act 1977 (Qld) (Act) and evidence acts in other Australian jurisdictions, provides a mechanism for adducing electronic evidence, such as printout of a Facebook profile. Section 95(1) of the Act permits, subject to certain conditions in s 95(2), the admission of statements contained in a document produced by a computer.

Thus, where direct oral evidence of a fact would be admissible, any statement contained in a document produced by a computer and tending to establish that fact is admissible provided the following conditions are fulfilled:

• the document must be produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried over the period, whether for profit or not, by any person;
• over that period there must have been supplied to the computer, ‘regularly’ and ‘in the ordinary course of those activities’, information of the kind contained in the statement or of the kind from which information so contained is derived;
• throughout the material part of that period the computer must have been operating properly or, if not, any defect must have been such as not to affect the production of the document or the accuracy of its contents; and
• the information contained in the statement must reproduce or be derived from information supplied to the computer in the ordinary course of those activities.

If possible, (its not possible to keep a copy of the Facebook source code) the electronic version of the document produced by a computer should be retained to assist the court in substantiating the document’s originality and accuracy.

Section 95(3) of the Act provides that where 1 or more computers, or 1 or more combinations of computers, carries out the storing or processing of information during the relevant period, they are to be regarded as constituting 1 computer.

However, if a statement can be admitted under s 92 or 93 of the Act, then it is unlikely that there will be an attempt to admit the statement under s 95 as the conditions to be fulfilled prior to admission under s 95 are so much more onerous.

Certificate pursuant to s 95(4) of the Act
Where a statement is tendered under s 95 of the Act, a certificate purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device, or the management of the relevant activities, is admissible if it:

• identifies the statement and describes the manner of its production;
• gives such particulars of any device involved in the production of the document as may be appropriate for the purpose of showing that the document was produced by a computer; or
• deals with any of the matters to which the conditions of s 95(2) relate.

This certificate will need to be very precise as it has been suggested that it gives grounds of acceptance under common law evidence principles in any event. For example, in Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1313, electronic visa application was accepted into evidence in absence of the paper original and in conjunction with other written evidence.

When electronic evidence may be disadvantageous to employees and employers
There have been increasing numbers of stories in the media regarding how Facebook and associated social media websites have either directly or indirectly resulted in people losing their jobs.

Recent Australian examples of social media pages being used in evidence

In the case of Tamicka Louise Dover-Ray v Real Insurance Pty Ltd [2009] AIRC 878, Ms Dover-Ray posted comments on her Facebook profile allegedly damaging her former employer’s reputation and that was a consideration giving rise to her employment being terminated.

In the case of Lukazsewski v Capones Pizzeria Kyneton [2009] AIRC 280, Mr Lukazsewski’s employment was terminated after his former employer saw his comment on Facebook as being ‘pissed off’ without revealing whom the comment was directed.

In September 2009, a group of 5 corrections officers from New South Wales were allegedly threatened with the sack after making disparaging comments about their boss, Corrective Services Commissioner Ron Woodham, on a Facebook group called ‘Suggestions to help Big RON save a few clams’.

In October 2008, Kyle Doyle of AAPT lost his job after taking a day of sick leave and later being discovered to be boasting on his Facebook profile that he was in fact merely ‘hung over’.

To address these types of situations in employer-employee relationships, employers should consider implementing a specific social media policy and where practical, additional employment clauses to give their employees proper structure and direction in relation to use of social media websites.