Posts from Facebook and Instagram are now being submitted to the courts as a new type of evidence, alongside material from other social media, in order to prove all manner of factual allegations. Against this backdrop, one observes with particular interest, but also with concern, the difficulties Greek case-law encounters in the way it should treat the production of such posts. Greek courts appear to address the submission of social media posts differently from other evidence, because they very often contain personal data of the opposing party.
In general terms, the lawfulness of producing such posts depends on the audience they were originally addressed to. If the audience of the post was all users of the platform (public), the production is lawful; conversely, if the post was addressed only to the user’s “friends”, it constitutes inadmissible or prohibited evidence. According to this case-law, the reason for this distinction is that, in the first instance, the (public) post does not constitute personal data and therefore is not protected under data protection legislation.
To illustrate the point, we present below, in chronological order, excerpts from rulings of civil courts in Greece.
FACEBOOK POSTS AS EVIDENCE IN CIVIL PROCEEDINGS
Child maintenance – Taken into account
Thessaloniki Single-Member Court of First Instance 16791/2009 (Interim Measures)
In particular, the minor children should not, at least for the time being, spend the night at their father’s residence, because he, acting at the very least imprudently and while the spouses’ marital cohabitation was still ongoing, posted on the internet — specifically on Facebook — a personal video he had filmed himself, showing their nine-year-old daughter in indecent poses. It was held probable that the mother was also aware of this. It is true that many parents post various photographs of their minor children on Facebook, but such conduct does not fall within the exercise of parental care and custody of the person of minors, who are exposed on the internet without reason. Apart from the above incident, no other reason was found probable for restricting the minors’ contact with their father.
Interim custody of child – Taken into account
Athens Single-Member Court of First Instance 11183/2012 (Interim Measures)
The father claims that the breakdown of marital cohabitation is attributable to the mother’s poor management of the family finances; throughout their married life she had managed the money he earned from his work. […] On the contrary, it was held probable that the breakdown of marital cohabitation was due to the father’s entering into an extra-marital relationship with a third person; this is rendered probable by the fact that the father, on the social network “FACEBOOK”, reports that he is in a relationship as of 18 December 2011, with the comment “THE BEST DAY OF MY LIFE”, in conjunction with the fact that, as appears from the detailed transaction statement for March 2012 of the father’s credit card no. …………, he proceeded on 30 March 2012 (when the marital cohabitation between them had already been broken) to make a purchase from the women’s lingerie shop ………… in Maroussi for the value of EUR 192.40, and subsequently from the women’s jewellery shop ………… for the value of EUR 528.
Award of child custody – Taken into account
Thessaloniki Single-Member Court of First Instance 4623/2014 (Interim Measures)
On the other hand, the father is particularly anxious about the upbringing of his children, since the mother’s current partner shows particular interest in cannabis, as appears from his Facebook page […]
Maintenance – No consent – Not taken into account
Larissa Court of Appeals 346/2015
3. […] Lastly, by “uploading” any information concerning us to a social networking service, such as Facebook, we are essentially publishing our personal data on the internet. Such data become available to our “friends” on Facebook, to the “friends” of our “friends”, while certain data are available to all Facebook users. In Greece, as in the other countries of the European Union, there is specific legislation protecting individuals against the uncontrolled use of their personal data. The Hellenic Data Protection Authority (HDPA) is the competent body for the application of this legislation in Greece (Laws 2472/1997 and 3471/2006). A fundamental rule laid down by these laws is the following: in order for someone to use our personal data for a specific purpose, he must have obtained our consent.
This is the usual scenario for the processing of personal data on the internet and means in practical terms that we must have declared, directly or indirectly, that we consent to the processing, after having first been informed precisely as to the identity of the person wishing to use our data (the “data controller”), the reason for which he wishes to use them, the data items he seeks to obtain, and to whom they will be transmitted. There are of course exceptions (e.g. processing of our data is sometimes required by law or constitutes a legitimate interest of the data controller, in which case it is permitted without our consent). Such exceptions are expressly defined in the personal data protection laws.
4. From the sworn testimony … without taking into account the printouts produced and invoked by the father of the mother’s online conversations with third parties and her posts on the social network Facebook, since there is no consent on her part for their processing, and which therefore constitute inadmissible evidence (cf. Areios Pagos 996/2010, AP 981/2009, Thessaloniki Court of Appeals 389/2002 NOMOS){…}
Award of child custody – Taken into account
Thessaloniki Single-Member Court of First Instance 5604/2015
Lastly, it is established that the defendant, on the social network (Facebook), makes derogatory and insulting statements against the plaintiff.
Lease – Taken into account
Kalymnos Magistrate’s Court 55/2015 (Interim Measures)
On the contrary, in the court’s judgment, had the applicant abandoned the leased premises, he would not have filed the present application, and had the respondent really believed that the applicant had abandoned them, he would not subsequently — after the filing of the present application — have withdrawn the advertisement he had posted on a social networking site (www.facebook.com) regarding the offer of the disputed shop for re-letting.
Maintenance – Taken into account
Piraeus Court of Appeals 214/2016
IV. In the present case, from the re-evaluation of the sworn testimony of the witnesses for the plaintiff and the defendant, ………… and …………………., contained in the minutes of the public hearing bearing the same number as the appealed judgment, invoked and produced in official copy, as well as from the totality of the documents which the parties invoke and lawfully produce either to be considered independently as evidence or, in the alternative, to serve as judicial presumptions (some of which (documents) are specifically referred to below, without disregarding the evidential weight of the rest), and which are taken into account in the present procedure even if they do not meet the conditions of the law (see Plenary Areios Pagos 15/2003, ElLDni 2003/937), among which are also the affidavits no. 2911/15-5-2013, 2912/15-5-2013 and 2927/20-5-2013 of …………… and ……, before the notary public of Piraeus, …., produced and invoked by the mother, and the affidavits no. 27/8-5-2013, 29 and 30/14-5-2013 of …………… and …………………, before the notary public of Athens, …………………, and affidavit no. 9.657/20-5-2013 of …………………………, before the notary public ……, …………………………, produced and invoked by the father, which are taken into account for the drawing of judicial presumptions, since they were taken in a previous interim measures proceeding between the parties (see AP 913/2008, NOMOS database) as well as the photographs (some from Facebook), the authenticity of which is not disputed (Articles 444 § 1 (c), 448 § 2 and 457 § 4 KPolD, as the first of these provisions was replaced by Article 40 § 1 of Law 3994/2011), which are deemed private documents (AP 1626/2000, Dni 2001/711), in conjunction with the partial admissions and confessions of the parties drawn from their pleadings and assessed under Articles 261 paragraph (b), 352 § 1 and 524 § 1 KPolD, as well as the teachings of common experience (Article 336 § 4 KPolD), the following facts are fully established in the court’s judgment: […]
Subsequently, the father left for his planned holidays, again without leaving any money for the mother, who was forced — in order to support herself and not to be alone — to go to her parents’ aforementioned country house. There, for some twenty days, she had no news from the father; however, through the well-known online social network “Facebook”, she became aware of new acquaintances of her husband with foreign women, and in particular with …………………, possibly of Estonian origin, while a photograph was posted on his account showing him embracing a young woman. The witness who gave the affidavit, the father’s sister, maintains that this woman worked at her shop — a restaurant — and that the photograph was taken for advertising purposes. However, this was not established, since, upon inspection of the photograph itself, which is in the case file, the shop appears only minimally in the background of the photograph, in such a way that it could hardly be advertised, while any status of the young woman as an employee of the shop was not proven, with full judicial conviction, since, on the one hand, the husband of the father’s sister did not recognise her at the hearing of the interim measures proceedings, between the same parties, and, on the other hand, the witness — his sister — does not provide any further details about that young woman. […]
Furthermore, while his wife was in the seventh month of her pregnancy, he decided to take a long holiday on his own, without communicating with her and without showing concern for her health, devoting his time to personal entertainment and to new acquaintances, which he advertised on Facebook.
Debt restructuring – Public post – Taken into account
Dymi Magistrate’s Court 32/2016
Nevertheless, he has breached the duty of candour imposed by Article 10 paragraph 1 of Law 3869/2010, by concealing the truth as to his wife’s income. More specifically, his wife, as mentioned above, terminated her business on 9-1-2014, but continues to derive income from it, maintaining it as a “hidden” trader, since she appears as the person responsible for the “…” shop online (see website <….>), has worked in the past at one of the two shops she maintained (see public posting of a photograph on the social networking site “Facebook” on 16 April 2012), and accordingly knows the operational object of the business. […]
In application of the inquisitorial system in non-contentious jurisdiction, which permits the ex officio search for evidence (see the considerations in the major premise I), the following emerged: […] B) The shop never closed; it was operating normally even after 9-1-2014, as appears from: i) the photograph dated November 2014 from Google Earth Street View, in which the shop is visible on …………………, ii) the public posts of the husband and first applicant on the social networking site “…………”, with photographs of the shop’s interior on 9 July 2016, 1 October 2016, 6 October 2016 and 22 October 2016 (see corresponding photographs), and iii) the public posts of the group on the same site under the name “……………………”, where the address ………………… and the telephone …………… (the same as the above) appear in the information section, with photographs of the shop’s interior and staff on 29 April 2015, 1 May 2015, 2 May 2015, 3 May 2015, 12 May 2015, 6 August 2015 and 24 December 2015. […]
Moreover, as regards the first applicant, in view of the fact that he states in the public information of his profile on the social networking site “……….” that he is “the last wheel of the carriage in the company …………………”, combined with the fact that he is a member of a company with the same object, which is no longer operating (a café, snack bar, confectionery and self-service shop), the Court has well-founded suspicions that he is occasionally involved in the operation and finances of the shop.
Maintenance – Not a public post – Not taken into account
Thessaloniki Single-Member Court of First Instance 13748/2017 (Interim Measures)
From the documents produced and invoked by the parties, […] and without taking into account the printouts produced by the respondent in the application, depicting posts which the second applicant made on his Facebook profile (so as to be visible only to his “friends” on that particular social network), a text message (sms) sent by the second applicant to the father’s mobile phone, as well as printouts depicting transcripts of telephone conversations which the respondent had with the second applicant on 10 November 2014 and with the first applicant on 12 November 2014, which were recorded and used without the applicants’ consent, since they constitute prohibited evidence and their consideration by this Court would conflict with Articles 9 paragraph 1 (b), 19 paragraph 1 of the Constitution and Article 8 of the European Convention on Human Rights (see, in this respect, AP 996/2010 in NOMOS, Larissa Court of Appeals 346/2015 in NOMOS, Piraeus Single-Member Court of First Instance 1121/2013 ElLD 2013, 1468 // K. Georgiou, Interim Measures, ed. 2015, Article 690 under no. 11), the following are held probable:
Debt restructuring – Public post – Taken into account
Thessaloniki Magistrate’s Court 6981/2017
Under Articles 443, 444 § 1 (c) and § 2 of the Code of Civil Procedure (KPolD), private documents also include photographic or cinematographic representations, sound recordings and any other mechanical depiction. Such a private document, produced as evidence in civil proceedings and concerning a private contact and conversation conducted without the knowledge and consent of one of the participants, is rendered inadmissible evidence, as it constitutes an impermissible restriction on the constitutionally protected free exercise of communication, in accordance with Articles 2 § 1, 9 § 1 (b), 9A, 19 of the Constitution and Article 8 of the European Convention on Human Rights (see AP 996/2010, AP 981/2009 NOMOS database). Such prohibited evidence, which is not taken into account in the proceedings, also includes printouts depicting posts which a user has made on his “profile” on the social network “Facebook” so as to be visible only to his “friends” on that particular social network (see also Thessaloniki Single-Member Court of First Instance 13748/2017 NOMOS database).
Furthermore, Law 2472/1997 on the “Protection of the individual against the processing of personal data” punishes the abolition of the secrecy and confidentiality of private life in cases of processing of personal data without consent (see Larissa Court of Appeals 346/2015, Athens Court of Appeals 175/2014 NOMOS database). It concerns, that is, interference with files which are concealed and have not been made public and the processing of concealed personal data through interference with a concealed file. As long as private life remains confidential it is worthy of protection, but once it has been broadly made public it ceases to be worthy of protection under that law, that is, when such personal data of the individual are known to a relatively large number of persons, or can easily be perceived by them and are considered ascertained, then the right to informational self-determination is not infringed nor is private life.
In the case of the social network “Facebook”, the user has the option of making privacy settings on his “profile”, if he wishes to limit the circle of persons who have access to it, to his photographs and generally to his posts — that is, to make settings restricting access to his information. Equally, however, he has the option of making such information publicly and freely accessible to all (even to internet users who do not have a Facebook account), by uploading it to that site without security settings. Information, however, that is uploaded by the data subject for public access on the internet does not constitute personal data and does not fall within the protective provisions of Law 2472/1997 (see Three-Member Athens Court of Appeals 175/2014 Athens Bar Association database, Decision of the Athens Misdemeanors Council 1281/2014 NOMOS database).
In the present case, the absent party’s claim that the printouts of Facebook posts produced by the respondent in the application violate personal data and constitute inadmissible evidence is to be rejected as legally unfounded, since, upon inspection of those printouts, it appears that they are public posts on the “page” of the absent party’s hairdressing business on Facebook, as well as public posts on the “profiles” of her children on the same social network, freely accessible to all, especially since they were intended to advertise the professional activities of those users; the same applies to the printouts of advertisements and notices on the internet produced by the respondent, which also concern the absent party’s professional activity (see also Dymi Magistrate’s Court 32/2016 NOMOS database).
Consequently, from the assessment of the sworn testimony of the prosecution witness who cohabits with the applicant and the unsworn testimony of the latter herself, lawfully examined at the hearing and contained in the minutes of the public hearing of this Court bearing the same number as the present judgment (the participating creditor “….” did not propose nor examine a witness), from the documents lawfully invoked and produced by the parties, which include the aforementioned printouts of online posts and Facebook posts, some of which are taken into account as independent evidence and others for the drawing of judicial presumptions (Articles 336 § 3 and 339 in conjunction with Article 395 KPolD), with specific reference made to some of them, without however any having been omitted for the substantive determination of the case, also from the admissions inferred from the parties’ allegations (Article 261 KPolD), from notorious facts and the teachings of common experience taken into account ex officio by the Court (Article 336 §§ 1, 4 KPolD), and finally from the ex officio ascertainment of facts under Article 744 KPolD and from the entire oral hearing — given that, under Article 745 KPolD, the Court takes into account also factual allegations admissibly raised up to the conclusion of the final hearing before it — the following are established:
Maintenance – Public post – Taken into account
Larissa Court of Appeals 201/2019
[…] but also from the photographs produced, the authenticity of which is not disputed (Articles 444 paragraph 1 no. 3 and paragraph 2, 448 paragraph 2 and 457 paragraph 4 KPolD), from the printouts of posts on the social network Facebook from the public account – profile of the website of the father’s business and his own, as well as of a third person, which can be located through internet search engines (Google) and accessed indiscriminately by all internet users, given that they are not locked and are therefore accessible to any user of the aforementioned social networking site, […], the following facts have been established:
Maintenance – Not a public post – No consent – Not taken into account
Larissa Court of Appeals 188/2019
4. The internet is by its nature an open space, without borders or central governance, accessible to anyone, anywhere in the world (P. Kiortsi, Censorship and freedom of expression on social networking sites, ToS 2013, p. 589); the use of the new means of communication entails the creation of new forms of action and interaction, new types of social relations and new ways of relating to others and to ourselves (see L. Mitrou, in L. Mitrou/A.-M. Piskopani/S. Tassi/M. Karyda/S. Kokolaki, Facebook, blogs and rights, 2013, p. 10). In particular, “Facebook” is a popular online social networking service (website) on the world wide web. The user of “Facebook”, after first registering for the service through a simple procedure and acquiring his personal page by creating his personal profile, can communicate with his contacts via messages, notify them when he updates his personal information, create new connections, or form interest groups. The user of “Facebook” has the option, by using the privacy settings of that service, to provide unrestricted access by other internet users to the contents of his personal page, or to limit such access only to those designated by him as his “friends”. In particular, the operation of “Facebook”, in contrast to that of traditional information websites, which publish information on their webpages, is based on the entries/posts of the holder of each account and on the responses of those who visit it, either as ordinary internet users or as “friends” of the administrator, who in turn post texts, comments in response to previous comments by the holder or other users, photographs, links pointing to other websites, blogs, or other Facebook user pages. In this way, discussions and exchanges of views between the holder and the readers are reinforced. Therefore, “Facebook” as a social networking service is an interactive medium and at this point differs from the websites maintained by traditional media on the internet, since the formation of its content is decided not only by the owner and the journalists of the medium, but, on the one hand, by the holder-administrator of the account himself, and, on the other hand, by all internet users, who are readers of what is posted in the corresponding electronic space at any given time. Therefore, in light of the above, the purpose of the creation and the destination of social networking services such as “Facebook” is not the dissemination of information for the purpose of mass communication, but the exchange of views, ideas, thoughts and analyses, through a mechanism of dynamic communication and the use of a medium which, due to its nature, indeed has as a direct and necessary consequence that its content (posts, comments, photographs etc.) becomes accessible to a limited (following the choice of the holder-administrator) or unlimited number of persons, without however this being the very purpose of the administrator and holder thereof or of the readers (Athens Multi-Member Court of First Instance 1122/2014, NOMOS database – see also A.-M. Piskopani, The protection of the privacy of Facebook users, DiMEE 2009, 338 et seq. and the same author, Freedom of expression on the privatised public network of Facebook, in L. Mitrou/A.-M. Piskopani/S. Tassi/M. Karyda/S. Kokolaki, Facebook, blogs and rights, 2013, p. 19 et seq.).
Debt restructuring – Public – Taken into account
Chania Magistrate’s Court 799/2019
Furthermore, it was established that, in June 2017, the applicant posted on his “profile” on the social network “Facebook” a photograph of a professional vehicle for the transport of 9 passengers, of the brand …………………, with an average value of EUR 40,000, beneath which one of the applicant’s online “friends” wished him “Best of luck”, with the applicant replying “Thank you”.
Given that this post on the applicant’s “Facebook” “profile” is public and freely accessible to all users of that social network, the printout of the above post, produced by the first participating creditor, constitutes admissible evidence which does not violate the applicant’s personal data (see Three-Member Athens Court of Appeals 175/2014 Athens Bar Association database, Athens Magistrate’s Court 5551/2019, Patras Magistrate’s Court 1211/2019, Thessaloniki Magistrate’s Court 6981/2017, Dymi Magistrate’s Court 32/2016 NOMOS database).
Debt restructuring – Taken into account
Piraeus Magistrate’s Court 13/2019
Moreover, indicative of the fact that the applicant did not treat the teaching of English as a profit-making business is also the fact that he operates, to this day, the website . (last date of posts: 07-05-2017) and the blog .. (last publication date: 12-01-2019), as well as accounts (last date of posts: 09-12-2018) and (last date of posts: 12-01-2019) on the social network Facebook, providing, among other things, instructions for the learning and proper use of the English language, while he himself volunteers to provide users with free English-language classes (see, on the … account, user comments and the applicant’s responses to the applicant’s post of 2 February 2018 entitled “Pleased to meet you!!”).
Parental care and custody – Taken into account
Piraeus Single-Member Court of Appeals 55/2020
In the present case, from the assessment of the sworn testimony of the witnesses, … and the documents lawfully invoked and produced by the parties, without excluding the printouts of text messages (sms) which the parties produced and had exchanged between themselves — and which therefore did not relate to communication with third persons taken without their consent — and the printouts of posts on the social network Facebook from the public account – profile of the plaintiff’s website, which is accessible indiscriminately to all internet users via internet search engines (Google) (Plenary AP 1/2017 NOMOS database, Larissa Court of Appeals 201/2019, Athens Court of Appeals 3323/2018 Athens Bar Association database, K. Tomaras “Are mobile phone text messages ‘sms’ really unlawful evidence?” EfADPD 7/2018) and finally from the teachings of common experience and logic taken into account ex officio by the Court (KPolD 336 § 4), the following facts have been established:
Maintenance – Taken into account
Piraeus Single-Member Court of Appeals 130/2020
The posts on a social network (Facebook) which the second plaintiff is alleged to have made, concerning the provision of nail-care services under the profile …., printed out and produced by the defendant in support of the above allegation of his, concern dates in August of last year, that is, after the disputed period.
Maintenance – No legitimate interest, not a public post – Not taken into account
Thessaloniki Single-Member Court of Appeals 1302/2020
[…] also without taking into account the various photographs which the mother posted on her personal Facebook account, produced by the appellant – defendant, without his invoking or proving that any of the conditions for lawful processing of those data, set out in the EU General Data Protection Regulation (2016/679) (GDPR) and Law 4624/2019, are satisfied; in any event, this conduct is not deemed to serve purposes and legitimate interests overriding those of the plaintiff as the data subject (see also AP 996/2010 invoking the protection of a constitutionally superior good), since those photographs, according to the settings of her personal account, are accessible only to “friends” and are not public posts, and therefore constitute personal data (Larissa Court of Appeals 346/2015 published in NOMOS) protected by the above Regulation and Law; under Article 6 of that Regulation, the invocation and presentation of such data by a third person, without the consent of the data subject and without one of the conditions laid down by the law being met, constitutes prohibited processing.
Road traffic – Account printouts produced, but further proof of the allegations is required
Athens Single-Member Court of Appeals 1332/2020
The court of first instance held the driver of the vehicle insured with the defendant to be exclusively at fault for the accident. The defendant – now appellant, by her first ground of appeal, claims that her insured made an untruthful declaration of the accident, as appears from the failure to summon any police authority to the scene of the accident, the failure to produce photographs from the scene, the failure of the defendant’s witness to mention the person driving the vehicle which, according to his testimony, collided with the plaintiff’s vehicle, and from the fact that an online check showed that the plaintiff and her insured had Facebook accounts and that, before the accident, they were friends and followed each other’s posts. However, it was not proven from the evidence produced by the appellant that …. In addition, the defendant – appellant did not prove, by sworn testimony or affidavit of a witness or by the production of documentary evidence, that the photocopies of Facebook accounts of users … and … which she produced belong, respectively, to the plaintiff and to the driver of the vehicle insured with her, and, if so, that they had a friendly relationship before the accident.
Infringement of personality through a post in a closed Facebook group – No infringement of privacy, secrecy or personal data – Taken into account
Thessaloniki Three-Member Court of Appeals 2116/20201
Furthermore, Facebook is a social networking platform belonging to the broader category of Social Networks (a similarly well-known service is Instagram). It was founded in 2004 by …. and is currently the most popular of its kind. Anyone may register on Facebook, provided that he is over 13 years of age and has internet access. Through a simple procedure, the internet user creates his own Facebook account and may configure his own personal page (“profile”), entering into it whatever information he wishes, such as his given name and surname, date of birth, residential address or place of residence, contact details, his interests, and so on.
With the News Feed service, every change in a user’s profile (e.g. his interest in attending an event, the publication of a photograph from a trip, etc.) appears as a news item on the home page of his registered “friends”, with the consequence that the latter are automatically informed of the information and the time of its posting. On the basis of the above, Facebook provides a public online space in which users, as a rule, disclose a wealth of details of their lives and personalities. Indeed, according to Facebook’s official website, a presumption is established that the user wishes the dissemination of his information rather than its protection. Under Facebook’s privacy policy and the privacy settings it offers, users have the ability to regulate the degree of publicity of their profile. In particular, the user has the option, at any time and not only upon creation of his account, to make privacy settings on his “profile”, if he wishes to limit the circle of persons who have access to it, to his photographs and generally to his posts — that is, to make settings restricting access to his information (“closed profile” accessible only to registered “friends”). He also has the option of making such information publicly and freely accessible to all (even to internet users who do not have a Facebook account) by uploading it to the site without security settings (“open profile”).
It must, however, be particularly noted at this point that limiting the persons who have access to the user’s personal page is a relative concept, considering that every registered “friend” of the user may copy onto his own computer, repost on his own page, or transmit to other websites any information he gathers from Facebook; or a registered user with lawful access may further disseminate such information, possibly rendering any expectation of privacy unjustified. For this reason, the use of Facebook posts in the evidentiary process should not be excluded a priori, on the ground that it infringes the rights to private life and secrecy, but should be examined ad hoc according to the specific circumstances (see Niki Georgiadou, Facebook as evidence in civil proceedings, DEN 2019, 300). […]
Consequently, by the aforementioned conduct of the third defendant, the plaintiff’s personality was infringed, within the meaning of Article 57 of the Civil Code (AK), since his honour and reputation were defamed and infringed, elements which constitute essential values of his personality; that infringement caused moral damage to the plaintiff, who, upon becoming aware of it, suffered distress and disturbance. It must be noted at this point that the plaintiff became aware of those posts later, after their publication, the content of which he viewed from copies provided to him by friends and acquaintances of his who had authorised access to those posts, which were produced and invoked both at first instance and before this Court. Those posts constitute admissible evidence and the court of first instance committed no error in taking them into account; they are also admissibly taken into account by this Court, given that the reading, circulation and publication of those posts on the Facebook page neither violates elements of that defendant’s private life nor do they constitute confidential matters. In particular, as noted above, that group may have been closed, but it was entirely free in terms of the entry of new members, the number of whom could not be predetermined (was indeterminate) and was in any event not finite, and could therefore in no way be characterised as narrow. Combined with the fact that the limitation of the persons who had access to the personal page was a relative concept, considering that every registered “friend” of the user could copy onto his computer, repost on his own page, or transmit to other websites any information he gathered, or a registered user with lawful access could further disseminate such information, no justified expectation of communication in a setting of intimacy and privacy could in any way arise for anyone, including this defendant, in respect of that means of communication. Therefore, since the conditions for communication between a finite and limited (narrow) circle of persons (already a group of 337 persons, with the possibility of expansion to an indeterminate number of persons) — and thus communication in a setting of intimacy and confidentiality — are not met, the use and exploitation of those posts does not raise any issue of infringement of the third defendant’s private life or right to secrecy. For, from the moment the latter rendered aspects of his private life publicly known, both to a very broad number of “friends” and to an indeterminate and non-finite number of potential visitors to the page, the user himself accepted the inclusion of elements of his private life in public life and public communication. It must further be noted that no issue of infringement of secrecy arises, for the additional reason that it was proven that the said posts were obtained by the plaintiff from the website not while they were in the process of transmission, but later, from his friends and acquaintances, when they were already in electronic storage; and, in accordance with the findings of the major premise, no infringement of the right to secrecy and privacy exists.
Therefore, the third ground of appeal A of the said defendant, which maintains the contrary — namely, that the said posts should not be taken into account because they infringe his right to private life and secrecy — must be rejected as unfounded. It must be noted at this point that this defendant did not reiterate, in his notice of appeal, the plea he had raised at first instance in his brief, namely that the said posts, which contain processing of his personal data, infringe his right to informational self-determination and are inadmissible as evidence on that ground as well. The Court, therefore, will not address that plea, since, given that it has not been transferred before it (this Court), it has not become an object of the appellate proceedings; quite apart from the fact that no infringement exists, given that, under Article 5 paragraph 2 in conjunction with Article 7 paragraph 2 (c) of Law 2472/1997, the processing of the posts by the plaintiff — consisting of their publication and production before this Court — is absolutely necessary for the satisfaction of his legitimate interest in obtaining judicial protection against the infringement he has suffered, satisfaction which he pursues by these proceedings, and which manifestly outweighs the rights and interests of the third defendant to whom the data refer, in light of the fact that the above material is the only direct evidence proving the infringement in its full extent, with proof through other, milder means being impossible due to its uniqueness.
MESSENGER
Damages and pecuniary compensation from an unpaid loan – Not absolutely necessary – Not taken into account
Piraeus Single-Member Court of Appeals 245/2021
A precondition for the lawful application of the above provision is that the data whose disclosure is sought, or whose use is intended, must be absolutely necessary and appropriate for the recognition, exercise or defence of a right before a court (principle of necessity), namely in view of the specific pending case. Necessity exists when the pursued objective cannot be attained by other, milder means. Furthermore, the data must not be more than is absolutely necessary for the defence of the right (principle of proportionality) (Plenary AP 1/2017, AP 79/2020 NOMOS database).
By the third ground of appeal, the appellant raises a defect, consisting in the fact that, in forming its judgment, the court of first instance excluded as inadmissible evidence the printouts produced and invoked as exhibits 13, 14, 15, depicting excerpts of her conversations with the respondent on the social network “Facebook” and, more specifically, on the messaging application “Messenger”, which it claims must be taken into account for the protection of her property rights and her right to a fair trial, since they constitute the sole documentary evidence founding her claim regarding a donation of EUR 8,000. This ground of appeal is legally unfounded and must be rejected, since all the other evidence is appropriate for the defence and recognition of her alleged right before this Court, without it being absolutely necessary for the satisfaction of that pursued objective to use the said collected personal data, given the absence of consent of the plaintiff – respondent.
Therefore, the court of first instance, which by the appealed judgment did not take into account the conversations on the social network “Facebook” produced by her (the defendant), as inadmissible evidence — there being no consent of the plaintiff, now respondent — correctly interpreted and applied the law, and the corresponding ground of the present appeal, in accordance with what has been said in section III of the legal reasoning, must be rejected as unfounded on the merits.
Interim measures concerning unpaid wages – No overriding legitimate interest – Not taken into account
Piraeus Single-Member Court of First Instance 590/2021
From the sworn examination before this Court of the applicant’s witness … and the sworn testimony of the applicant’s witness […], as well as from the documents produced by the parties and the photographs invoked and produced by the applicant, the authenticity of which was not disputed by the respondents, except for the conversation through text messages between the applicant and the daughter of the second respondent on the online communication application “Messenger”, produced by the latter, without their invoking or proving that any of the conditions for lawful processing of those data, set out in the EU General Data Protection Regulation (2016/679) and Law 4624/2019, are satisfied; in any event, this conduct is not deemed to serve purposes and legitimate interests overriding those of the applicant as the data subject (see also AP 996/2010 invoking the protection of a constitutionally superior good), since they are not public posts and therefore constitute personal data (Larissa Court of Appeals 346/2015 NOMOS database) protected by the above Regulation and law; under Article 6 of that Regulation, the invocation and presentation of those data by a third person, without the consent of the data subject and without any of the conditions laid down by the law being met, constitutes prohibited processing (see also Thessaloniki Court of Appeals 1302/2020 NOMOS database); the following facts have been held probable:
Maintenance
Piraeus Single-Member Court of First Instance 351/2019
The father, for the first time in his written brief, invoking photographs of his daughter on Instagram in which a chest with items appears, contends that his daughter sells those items and earns money — an allegation which is not supported by any other evidence, not even by the photograph he invokes, given that it is not stated therein that the items in the chest are for sale. Moreover, neither does it appear from the other photographs from Instagram which the applicant produces, as he himself states in his brief, that the respondent earns income from sales or advertising.
Maintenance
Athens Single-Member Court of Appeals 411/2019
According to the online post of the …….. clinic on its official Instagram account, it is expressly stated that the defendant has carried out, since 2013 — the time of his collaboration with the said clinic — and up to November 2016, 10,237 procedures over the last three years, that is, from 2013 to November 2016. He also has surgical privileges at the hospitals at ……… and at ……. in Dubai. Already in 2016, as is shown by a relevant professional post of the defendant, the cost of his medical visit alone amounted to EUR 200.
- See also article Revocation of Interim Measures Decision
- See also article Divorce
- See also article Relocation of Family Home
- See also article Joint Custody of Child
- See also article Child Maintenance – Means of Collection
- See also article Custody and Child Abduction
- See also article Change of City for Minor Children
- See also article Surrogate Mother – Court Authorisation
- See also article Online Fraud
- See also article Bank Liability in Online Fraud
- See also article New 2023 Law on Bank Liability
- See also article Investment Fraud Lawyer
- See also article Child Pornography
- See also article Defamation through Facebook
- See also article Cyberbullying
FREQUENTLY ASKED QUESTIONS ABOUT FACEBOOK & INSTAGRAM POSTS AS EVIDENCE IN COURT
1. Can I use my opponent’s posts in court?
The answer generally depends on the audience to which the post was originally addressed. If it was a public post, visible to all Facebook or Instagram users, then it is considered lawful evidence and can be freely produced at trial, since the user himself chose to make that information public. By contrast, if the post was visible only to the account’s “friends”, case-law treats it as inadmissible evidence, because it constitutes personal data protected by the relevant legislation, the processing of which requires consent. Proper assessment of each case requires legal evaluation before the documents are filed.
2. How do I correctly capture a post in order to produce it?
The usual practice is to print a screenshot of the post with a clear indication of the date, the user’s name, the URL and the audience to which it is addressed. In cases where authenticity is disputed, a notarial certification of website content is requested, or a report is drawn up by an IT expert witness, so as to certify the authenticity and timing of the post. Photographs and screenshots from social media are deemed private documents under Articles 443 and 444 of the Code of Civil Procedure (KPolD), with all the corresponding procedural consequences. The method of collection significantly affects the evidential weight of the material.
3. How quickly can I gather and submit such evidence?
The collection of posts from Facebook and Instagram is usually carried out promptly, within a few days, provided that the content remains visible. A problem arises when the opposing party deletes or deactivates his account, in which case retrieval becomes difficult and requires judicial assistance or a request to the platform. In a pending case, production takes place by the filing of briefs or at the hearing, depending on the procedure. In interim measures cases, the speed of collection is critical, as the hearing is often scheduled within a very short period.
4. What risks do I run if I produce unlawfully obtained material?
Producing posts originating from a closed “circle of friends” without the user’s consent entails a twofold risk: the material is rejected as inadmissible evidence and is not taken into account by the court, while at the same time it may give rise to civil liability for infringement of personality and criminal liability for breach of personal data legislation. Judgments have been issued (such as Larissa Court of Appeals 346/2015 and Thessaloniki Single-Member Court of First Instance 13748/2017) rejecting such material. Before filing any post, legal evaluation of its origin and audience is absolutely necessary, so that the litigant is not exposed.
5. What are my prospects in a custody or maintenance case with this kind of evidence?
In family law cases, courts consistently consider public posts that reveal extra-marital relationships, irresponsible conduct, drug use, concealed economic activity, or derogatory comments against the other parent. Such material often plays a decisive role in the determination of custody, the regulation of visitation rights or the calculation of maintenance. The evidential weight depends on the relevance of the post to the critical issues, the extent and frequency of the conduct, and its combination with other evidence. Each case is judged on its own particular facts.
6. What is the role of the lawyer in such cases?
The lawyer assesses, from the outset, the digital material available to the client, distinguishes what may lawfully be used at trial and what may not, advises on the proper capture and certification of the posts, and coordinates, where necessary, cooperation with a notary public or an IT expert witness. He also prepares the briefs and the standalone pleas for the admission or rejection of corresponding material produced by the opposing party. ZIAMPARAS D. & ASSOCIATES law firm, with its specialisation in Cybercrime and family disputes, handles cases in which digital evidence from social media plays a central role.