Social Media: How private is private?

08 AUG 2019


Social media has become an integral form of communication in our society. It was always inevitable that issues surrounding the use of social media would ultimately make their way into the Courts. Lawyers and judges have had to work out the best way to apply age old principles to concepts and situations which have never been considered before.

One of the questions which lawyers, judges and people involved in litigation may face is – to what extent is “private” social media use, actually private?

Several high profile cases have been in the news in recent weeks. Just this week, the High Court upheld a decision to sack an immigration department employee who had anonymously posted Tweets criticising the government’s immigration policies. In a legal dispute which related to whether the employee had breached the public service code of conduct, the Court found that any implied freedom of speech “is not a personal right of free speech” in situations where the communication could potentially damage the government.

Even more sensationally, a social and legal furore recently erupted over comments made by the former professional rugby union player, Israel Folau, on his personal Twitter and Instagram accounts. Folau posted religious verses in support of his strong religious views and this resulted in a decision by Rugby Australia to terminate his contract.

The debate about human rights and freedom of speech, in the context of employee / employer relationships, continues to rage. It may affect all of us. In light of the High Court’s decision, it certainly affects millions of public servants. But perhaps more relevant to everyday Australians is the question of their own personal communications on Facebook, Twitter and other social media platforms, and whether those communications can be used as admissible evidence in legal proceedings, even in situations where the communication was intended for private use only.

The law, of necessity, now recognises the existence of admissible evidence which comes in very unconventional forms, specifically, personal information which has been published via a social media account, often for private use and with an expectation that it will remain private as between those privy to the “conversation” or communication.

It is clear from recent case law that information or messages communicated on Facebook or other forms of social media, can be admissible in Court, if they are relevant to the questions before the Court. This is regardless of privacy settings or the intentions of the parties with respect to the communication.

In a case earlier this year, the Supreme Court of NSW considered the question of whether a Notice to Produce issued to the Plaintiff in the proceedings, should be set aside. The Notice required the Plaintiff to produce:


2.       All “Records” from your Facebook account…irrespective of if it is currently active…

3.       “Records” as used in this notice is to mean and include…all ‘posts’, ‘status updates’, ‘check-ins’, ‘messages’, ‘photo uploads’, ‘tagged’ photos and comments made by and / or ‘tagging’ you…

The case related to a claim for Total and Permanent Disability (TPD) benefits by the Plaintiff, Ms Gavan. To qualify for the benefit, Ms Gavan was required to prove that she was so incapacitated as to render her unlikely to ever engage in any employment for which she was reasonably qualified.

Ms Gavan claimed that she had suffered severe psychiatric and physical injuries.  She relied on medical evidence (and provided evidence herself) that she suffered from a range of extreme symptoms including: inability to communicate and interact with other people, inability to cope when approached by other people, does not like going out and socialising, likes to be at home where she feels safe, only leaves home for menial tasks and for the sake of her family, and has reduced her involvement in the recreational and social activities that she once enjoyed.

The Notice was issued to obtain documents which were otherwise inaccessible due to the privacy settings applied to the Ms Gavan’s Facebook account. Ms Gavan argued that the Notice to Produce was nothing more than a fishing expedition, arguing that the request for production of 9.5 years of records, including all “likes” and “messages” would encompass “thousands, if not significantly more, individual pieces of data”, and questioned whether it would materially assist the Court.

The Defendant argued that the information which was publicly available on Ms Gavan’s Facebook account was inconsistent with the symptoms she had reported to medical experts – for example, with respect to the extent to which she was capable of interacting with members of the public, travelling, and engaging in social activities.

The Court determined that the documents which were the subject of the Notice had material relevance to the issues in question. Accordingly, Ms Gavan was ordered to produce her private Facebook records.

The moral of this story is that it is important to be aware of the implications of communicating on social media. It is likely that communications which take place via social media may affect an employment relationship, or be admissible in legal proceedings.

For more information on the above article we recommend that you contact Accredited Specialist Joe Bonura on 02 4626 5077 or

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication

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POSTED: 10 Dec 2020
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