In 2024, a report by Deloitte highlighted that the average Australian spends 6 hours 20 minutes a week engaged in social media. In other words, nearly one day is spent purely using social media platforms! Two of the most popular social media activities we engage in are connecting with others, and sharing information.

Now, if you use social media for work, have you considered whether you need to keep a record of such activities and what are the risks?

Some Social Media Risk Exposures

As you would already know, an essential risk management step is keeping good records and that extends to what you do on social media. For example, if you use a messaging platform such as WhatsApp or LinkedIn to connect or message your client or contractors, it is important that you capture this information in your document management system.

Consultants also need to be made aware of other risks which could lead to a professional indemnity claim being brought against them. Examples of such risks include:

• Being sued for defamation if posting negative comments (such as in relation to a competitor’s work);
• Being sued for breach of copyright, moral rights or confidentiality if posting designs, images or information from a third party without their consent; and
• Making “gross” representations about the practice’s capabilities (i.e., “we are experts”) which could lead to a client claiming you owe them a duty of care that is higher than the standard required at common law.

To minimise risk, your practice should have a social media policy, with staff being trained on the risks of using social media. Staff should be reminded that they need to carefully consider what they include in messaging platforms and that internal messages are not “private” and can be caught by discovery. Staff should be mindful of communicating known facts and not making ill-considered, damaging admissions.

Further, when using social media (whether personally or professionally), you need to bear in mind that you are inadvertently building an evidence trail that may be discoverable during a claim. You might be thinking that you are protected by your tight privacy settings, but even with strict settings, what you do on social media may still be subject to discovery.

“Discovery”

Discovery is the process whereby, if you are a party to court proceedings, you will need to disclose all relevant documents. The definition of “document” is very broad and includes social media. So, if the activities you have undertaken on social media are relevant to the matter in dispute, then you will need to disclose that information even if you intended that information to remain private. There have been many cases whereby social media has been crucial to the outcome of a claim, and where information or messages shared on social media are admissible in court.

Social Media Used as Evidence in Court

For example, in Gavan v FSS Trustee Corporation [2019] NSWC 667 the court compelled the insured, a former police officer, to produce her private Facebook records to her insurer as part of her total and permanent disability claim. The insured was claiming that she had suffered chronic PTSD and major depressive disorder, and she was also reclusive and anti-social. The insured’s Facebook records, which showed her attending various events, socialising and travelling, were considered to have “obvious relevance” to the trial.

In Toskas v Waldron [2020] SADC 76, a traffic controller commenced a personal injury claim against his employer when he was injured at work. The employee claimed that he had suffered total incapacity and the injury significantly impaired his ability to live a normal life. His total incapacity claim failed due to evidence of his personal social media account which showed him engaging in various recreational and social activities.

You may be tempted to start deleting or “cleaning up” your social media posts or messages, but please take care! Deleting records that are relevant to current or foreseeable legal proceedings could have serious consequences. Whilst such an act may seem minor, it is no different to shredding a document and could result in contempt proceedings, adverse costs orders, or an order that such information be recoverable.

For example, in the American case of Fast v GoDaddy.com an employee injured herself during a skiing accident and underwent surgery. She later commenced proceedings against her employer claiming they pressured her into returning to work prematurely which resulted in her developing a debilitating condition. During litigation, the employee used the “Unsend” button on Facebook Messenger to recall over a hundred messages she had sent that were relevant to the proceedings. She also deleted messages from another platform, as well as altering and fabricating other messages.

The court held that the employee had a duty to preserve the messages that would be relevant to the litigation. Various sanctions were imposed on her. Relevantly, the employer was allowed to conduct a forensic review of the employee’s electronic devices and the employer could inform the jury of the employee’s undisclosed “redactions” from her posts.

Conclusion

In sum, social media forms part of many people’s daily habits – whether it be for personal or for work use. Whilst a message or post may seem harmless or “private”, just remember that one day, such message or post may be read out in court. So, each time you use social media, remember that such activity is “forever”, and if using for work purposes, make sure you capture it in your record keeping system.

Although social media and messaging apps have not been big contributors to claims against consultants, how well you manage your documents can make a major difference to your ability to defend claims. If you would like an overview on record keeping, and a chance to reinforce to your staff the value of good records, please join our first CPD webinar for 2025: Records you can rely on: https://informedpc.com.au/events-new/05-02-2025-webinar-records-you-can-rely-on/

Lisa Wastell-Anthony
Risk Manager QLD

This article is only general advice in respect of risk management. It is not tailored to your individual needs or those of your business, nor is it intended to be relied upon as legal or insurance advice. For such assistance you should approach your legal and/or insurance advisors.