When racecar driver Bill McMillen posted photos on Facebook showing himself fishing and attending the Daytona 500, he had no idea that he was broadcasting his message to the world. Otherwise he might have kept the information to himself. You see, McMillen was in the process of suing Hummingbird Speedway, claiming serious injury and loss of enjoyment of life as a result of an accident on the track. His Facebook postings suggested otherwise.

In the five years since this case was in court, the role of social media evidence has been gaining significant ground. In a recent study of legal databases, published by X1 Discovery, it was reported that social media played a significant role in nearly 700 cases in the past two years alone and that most of these involved either MySpace or Facebook.

In another survey, in which LexisNexis Risk Solutions polled more than 1,200 law enforcement professionals with federal, state, and local agencies, 83 per cent of respondents said they use social media, particularly Facebook and YouTube, to further their investigations. More than 67 per cent of respondents felt that social media helps solve crimes more quickly.

Right to Use

But even as the use of social media evidence becomes more and more common in investigations, there are still ethical and practical issues on the table, and not everyone is as enthusiastic about its use. Particularly when social media content is designated to be “friends only” there are questions about what is and isn’t private information. But many attorneys and investigators feel they should, in the right circumstances, have the right to use information that has been posted on social media, regardless of the poster’s privacy settings.

“Why shouldn’t we?” asks insurance and fraud attorney Roy Mura of Mura & Storm PLLC. “If I claim to be disabled and I’m collecting disability and I openly demonstrate, by [participating] in a triathlon, that I’m not disabled, why shouldn’t my insurance company be able to use that information to make a proper claims decision?”

Many defendants, however, are both surprised and indignant to find that material they have posted on social media sites is being used in an investigation. In fact, it’s common enough that Mura has created a video illustrating the point.

Invasion of Privacy

A poll run by an insurance journal in February 2012 asked readers whether they thought it was appropriate for an Arkansas court to rule that a Workers Compensation insurer had properly used Facebook content (which was open, unprotected, not friends-only content) to make a claims decision.

“Ten per cent of people who answered that poll said it was an invasion of privacy. And it was unprotected content,” says Mura. “So if 10 per cent of people who read the Insurance Claims Journal think that’s an invasion of privacy, chances are, sooner or later we are going to see a judge, somewhere, in some jurisdiction, saying it’s an invasion of privacy.”

Mura hopes that if this does happen, it won’t gain traction with legislators, and social media will remain the valuable source of information for investigations that it is today.