Twitter has been all over the news in past weeks. Lord McAlpine is suing those who tweeted (or re-tweeted) libellous allegations about him following the Newsnight broadcast about child abuse. Sally Bercow, the Speaker of the House of Commons’ wife and one of those being sued, could also face proceedings for contempt after, in breach of a court order, she tweeted the name of a schoolgirl who allegedly ran off with her teacher.
So we all need to know that ill-advised publications via Twitter or Facebook can give rise to legal claims of one kind or another. The Court of Appeal recently recognised in Cairns v Modi that internet libels, particularly of figures in the public eye such as the claimant international cricketer, have the capacity to “go viral” more widely and quickly than ever before. Not surprisingly, the court held that this percolation phenomenon should affect the assessment of damages.
But social media have a much wider significance for a lawyer or party involved in litigation. We look at some of the ways in which social media are affecting the resolution of disputes through examples from recent cases and flag up the tricks you may be missing out on.
Service of proceedings
On occasion it takes months to track down an address for service for a potential defendant, and even when that is achieved, you can still face the possibility of a challenge to the validity of the service. Applying under CPR 6.15 for permission to serve by an alternative method using social media may be the solution in such cases.
We know from the press that, following the lead of courts in Australia and New Zealand, the courts have allowed claims to be served by Facebook and Twitter. The Telegraph (21 February 2012) reported that Teare J allowed Facebook to be used where there were difficulties tracking down one of the parties in a commercial case. In 2009 Lewison J permitted an injunction (known as the Blaney’s Blarney Order) to be served by Twitter. The defendant anonymously posted to Twitter using the same name as the claimant political blogger Donal Blaney. The publication of the injunction, constrained by the 140 character limit, included a link to the text of the full court order.
Credibility of witnesses
For some reason, or perhaps simply the speed with which a posting or tweet can be accomplished, the informality of the medium and the lack of opportunity for reflection, people feel freer to express themselves and to exaggerate when using social media than they would do if they sat down to write a letter or CV. And, of course, whereas there is usually no record of a conversation, this is not the case with Facebook and Twitter. This, along with the rise of the text message, has fuelled many recent divorce cases.
Checking the Facebook and Twitter accounts of your own witnesses as well as those of the other side is prudent, not only for information posted contemporaneously to the events giving rise to the dispute but also for more recent postings which may affect the judge’s view about the credibility of witnesses and the weight to be given to their evidence at trial.
In Smyth v St Andrew’s Insurance Plc, a claim against insurers arising out of a house fire, a transcript of an exchange of messages on Facebook was adduced in evidence by the claimant insured. The judge commented that the messages sent by one of the house’s inhabitants to a witness six days before the trial accusing him of lying about her smoking in her room were “abusive and aggressive”. The judge upheld the claim, concluding that the most plausible explanation for the fire was the accidental discarding or dislodging of a lit cigarette by the sender of the Facebook messages.
Credibility of experts
Expert witnesses can also be less than accurate about their credentials, as was apparent from Raiss v Paimano where some wishful thinking in his report resulted in an expert’s credibility being destroyed at trial. One example illustrates the type of exaggeration we’re talking about - Mr Paimano was a Fellow of the Royal Institute of Chartered Surveyors but claimed also (and untruthfully) to be on its Panel of Arbitrators.
Facebook and other internet sites such as LinkedIn may offer an easy way of verifying the accuracy of an expert’s claims. It is, after all, only human to want to present yourself in the most flattering light. In Safetynet Security Ltd v Coppage, the defendant was sued for breach of a non-solicitation covenant in his contract of employment. The claimants attacked the defendant’s credibility by referring to the fact that he had lied on his Facebook page – as they put it, “he claimed to be an ex-SAS officer and did not reveal that he was an ex-police officer when asserting his credentials in security”.
Evidence of fraud and dishonesty
Facebook has been used to trip up many parties and witnesses, both in criminal and civil proceedings. In their drive to tackle fraudulent “cash for crash” whiplash claims, insurers and their lawyers have spent hours cross-referencing Facebook entries to their advantage. In Locke v Stuart, the judge accepted the defendant insurers’ case that the accident in issue was manufactured in order to justify the making of nine claims for damages for personal injuries.
The defendants were able to show that the claim was fraudulent by adducing three lever arch files of Facebook searches. These concerning 28 users and revealed links between many of those suspected to have been involved in a fraudulent series of road traffic claims in the Birkenhead area between 2006 and 2007. The judge endorsed the proper use of Facebook in such circumstances, but recommended that in future the court is presented with a document explaining how entries on Facebook are created and what inferences may safely be drawn from them. This would avoid spending too much time debating the concept and significance of Facebook friendship.
Litigators are getting used to searching electronic data such as emails, texts and voicemail, for vital evidence. They need now to extend their attention to social media to ensure that their own case cannot be scuppered by an unfortunate tweet or Facebook message and to take advantage of the means these media may provide to undermine the other side’s case.