"People just don't realize how exposed they are and how they're putting themselves out there," said Sean Pihl from his offices at Pihl Law Corp. in Kelowna. He's talking about the electronic trail of evidence that builds with every keystroke entered into a computer and then shared by any means.
"Social media and [an individual's] online presence is a huge tool for insurance companies and their defence counsel," Pihl said. "Police use it a lot as well."
Pihl handles cases from personal injury to employment and labour disputes.
He said a person's web presence has become an automatic go-to for employers. "It's pretty easy for me as an employer to put [a job applicant] through a PIPL search. It's a deep web search site. It goes deeper than just going to Google and putting their name in. You can see what people are posting, what social media they're using," Pihl said. It's a tool anyone can access.
One of the first times the legal ramifications of social media came to the public's attention was in the Vancouver riot after the final game for the Stanley Cup in 2011. "It was social media that suddenly exposed a lot of individuals in terms of what they were doing. People were taking pictures of the riots, posting it on their Facebook page and what have you. Employers were seeing that and firing people saying, 'I'm not employing a person who's engaging in this type of activity.'"
Pihl said everyone should be more aware of their online presence. Simply griping about someone online might get you slapped with a charge of defamation. "People will post something about their employer that's defamatory," Pihl said. While a spoken slur against a person or business is slanderous, once it's online it's libel. Something said can be defended simply by claiming you never said it and that the person who claims to have heard it either misheard or is lying. But an email or online post is a written document—evidence for a court case.
For his personal injury clients Pihl emphasizes the importance of their online presence. "I will say to them right off the bat: 'You have to understand that your social presence is going to be viewed by others.'"
Pihl sited cases in which the Supreme Court of B.C. has ordered people to provide entries from their Facebook or other personal online sites.
In several cases, postings and particularly photographs, have been used in court to determine the truth behind someone's claim that their ability to earn income or to enjoy their normal activities in life have been compromised where posted photos of skiing, dancing, holiday water sports and other physical activities prove otherwise.
In essence, Pihl said, the court's position is that if you have thousands of 'friends' on Facebook, "some of whom you haven't spoken to since Grade 3," you can't claim that there is "some sort of privacy attached to that."
It's standard now to get that material produced for court, whether it's on Facebook, Twitter, LinkedIn, Instagram or any other sort of social media.
And if you think just closing down your online presence will make it all disappear, think again. "All of that information is preserved. Just because you've deleted your account, it's all still there."
It's not only personal online sites that get tapped in court. The same goes in wrongful dismissal cases where use of a computer in the workplace, or a personal computer of an employee who works from home is entered as evidence. It's now common to obtain a computer's hard drive to discover every web site that's been searched. Where the employee says they were loyal and worked on their employer's behalf for hours each day, the computer tells the real tale—of time spent complaining about the employer in emails, playing games, shopping online or spending hours doing everything but earn their paycheque.
"What people don't realize is they leave tracks. It's an electronic trail," Pihl said.
Every email between employees, managers, board members, can all become documents in a legal case. "At the end of the day it's all there, it never goes away."
Recent cases from the BC Supreme Court are:
http://www.courts.gov.bc.ca/jdb-txt/SC/12/06/2012BCSC0614.htm
http://www.courts.gov.bc.ca/jdb-txt/SC/15/03/2015BCSC0359.htm
http://www.courts.gov.bc.ca/jdb-txt/sc/15/19/2015BCSC1983.htm