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When Social Media Undermines Your Legal Position

Posted: Monday, 27 March 2023 @ 14:13

Over time, I have been involved in Court cases where (poor) use of social media has played a role in undermining/wrecking a party's legal case. The themes I have seen with my work play out in society with our public figures such as recently the following:

  • the Cricketer commentator, Michael Vaughan being accused at a cricket disciplinary hearing of a  "tendency to make racist comments," with three historic tweets(use of social media platform ,Twitter) forming a key part of the evidence against him.
  • the Ex-England footballer Gary Lineker being suspended from work as a football presenter due to his language on Twitter.
  • The contents of WhatsApp messages compiled in lockdown being published in the Telegraph and being used against former Health Secretary, Matt Hancock. For Matt Hancock, this is despite the presence of a confidentiality agreement which prevents publication of those messages.

There are three themes at play:

1 The proliferation in use of written content creates much more written material about all of us. With online analytical tools and the fact that content can in fact be permanent, it is possible to investigate much of what has been written by anyone e.g if you have written something bad online, your opponent(or potential collaborator) may find it no matter how long ago. This is what is called a permanent online footprint. 

With respect to Mr Vaughan it appears that the centrepiece of evidence against him are three historic tweets out of more than 40,000 he has written. That may be a low percentage but if you write so much you make yourself more legally vulnerable despite the benefits of social media .  For Mr Vaughan, time is no barrier if someone wants to nail you.  The alleged incident of racism occurred 13 years+ before his hearing and the specific tweets are long ago too (from 2010 and 2017) yet despite this time lag, he has to hire a King's Counsel lawyer to defend himself.      

2 People's Mistaken Belief About Use of Social Media. As the columnist Charles Moore  observes  “The coming of social media was….. an emancipation, but it also created a false sense that you could say whatever you wanted without damage. This grew into something even more mistaken – the notion that your right to express an opinion in public automatically trumps other duties.” People think they can say what they like without consequence but in a Court case litigation that is definitely not the case and your opponent's lawyer may ruthlessly exploit this lack of understanding. 

3 Social Media Can Bring the Worst In Us/Create Errors. If you are engaging in public with people it is easy to be emotional or make errors when communicating at such speed. With respect to Gary Lineker and Matt Hancock part of their problems stemmed from engaging(immediately) with someone who commented on their social media feeds and both using wording which they may regret.     

While use of social media has many uses (including networking) the best attitude is to be circumspect and fundamentally you do not always have to use it. And there is a case in point. Ben Wallace who, as Defence Secretary, was added’ to one of Matt Hancock’s WhatsApp decision-making groups. However, after working out what it was he was shocked and refused to participate  He sent one of Hancock’s aide a message saying: ‘I shall continue to do things via POs [private offices] and speaking directly with your boss’. Hancock had thought that WhatsApp was appropriate for an emergency because it allows discussions at speed. Wallace, saw things differently and emerges with credit for having done so.

Given the above, do you have to use social media prolifically?