With the proliferation of social media, employers are more and more tempted to resort to their employees’ personal accounts so as to obtain valuable evidence whenever a dispute arises. For example, whether it be to provide proof of an employee’s state of mind, of activities that are incompatible with an employment injury or of fraudulent acts, Quebec tribunals have lately been called upon to decide how far an employer can go when it comes to retrieving and using the contents of an employee’s social media or email account as court evidence.
Two (2) main issues arise in this context: (1) Is the specific content offered as proof even admissible? (2) If so, how much weight should the tribunal grant to such evidence, when it contradicts the employee’s testimony, for example?
With respect to the first issue, the conditions of admissibility are clear: as long as the employer obtains the contents of the employee’s social media account through legal and legitimate ways, it will be considered as admissible proof. In fact, even though the information posted on social media accounts may be intrinsically personal, it is not of a private character since the point of posting such information is to share it with one’s network. The employee cannot, in those circumstances, claim to have a legitimate expectation of privacy when it comes to the contents of his or her account.
However, if the employer were to create a fake Facebook account and “lure” an employee into becoming a Facebook friend with the sole intention of gaining access to that employee’s page, for example, the tribunal would judge the evidence to be inadmissible because of the fraudulent tactics used by the employer.
When it comes to personal email accessed from the workplace, the expectation of privacy is somewhat greater but still not important enough to restrict an employer from using it as evidence when it has reasonable grounds to do so.
The second issue as to the value of such evidence is not as easy to settle in a conclusive manner. There is some reticence from Quebec tribunals in taking the contents of social media accounts at their face value, especially in the presence of contradictory evidence. It seems that the tribunal considers – and rightly so – that it is much easier to lie on Twitter than in a courtroom. Consequently, if the employer cannot provide corroborating evidence as to dates, activities, persons, etc., it runs the risk of having the judge or arbitrator prefer the testimony of the employee to the contrary.
In conclusion, an employer planning on using the contents of an employee’s social media or personal email account as evidence in court should make sure (1) not to use any fraudulent means in gaining access to the contents of the account and (2) it can provide corroborative proof of the contents.