Evidence by social networks with regard to employment injuries

Since 2001, the Act to Establish a Legal Framework for Information Technology¹ regulates the use of technology-based documents as evidence. The use of such documents is increasingly common and this is especially true in the areas of health and safety at work.

Case law has established that evidence lawfully obtained on social networks such as Facebook, Twitter and LinkedIn does not infringe on privacy. Indeed, what is on Facebook is not part of the private domain², “considering the multitude of people who can have access to it”(Our translation). However, if the information on social networks was obtained by the use of a subterfuge and lies³, if the information was not available for a large number of ” friends” or colleagues⁴ and if private parameters had been chosen, the evidence through social networks could be rejected because the employee had a reasonable expectation of having his privacy respected. However, the photos or comments posted on social networks are generally public and thus admissible⁵.

Evidence through social networks can and has been used for various purposes in regards to employment injuries, among others:

–       To contradict the statements of the worker;

–       To harm his credibility (E.g.: biking⁶, doing aerobics⁷, or kayaking⁸ when he is denying practicing these activities, denying consuming alcohol when he published proof to the contrary, etc.)

–       To find the cause of a health problem (for example, through Facebook conversations, an employer learned that the cause of a worker’s depression was his relationships with other people and not work¹⁰;

–       To support claims of workplace harassment¹¹.

In sum, although social networks provide many interesting social and commercial opportunities, one would be wise to remember and always consider that what is published often falls within the public domain.