Social media platforms like Facebook, Twitter and Skype have transformed the way that the world communicates and connects. Information is shared more quickly than ever before. Individuals have access to news as it’s happening. Users can exchange ideas and opinions with people across the globe with the click of a mouse. At the same time, social media has blurred the lines between what is public and what is private. A Facebook post may only be visible to certain friends, but the post’s digital footprint lasts forever.
Social media has also created important legal questions. To what extent can social media be used as a sword or a shield in litigation? The law is still emerging in this area as judges try to understand the implications of these technologies. Citizens should be aware that anything posted online has potential legal consequences if litigation ensues.
Discovery: Discovery is one of the early stages of the litigation process. Discovery facilitates the exchange of information between the two parties so that each has the ability to fairly try the case. Courts have been very hesitant to restrict access to social media outlets in the discovery process. Generally, courts believe that social media posts are not “cloaked in an expectation of privacy.”1 In essence, courts have held that posting on social media is a public activity; the opposite of having a private conversation in your own home. This rule applies even if the post can only be viewed by a limited audience. As a result, it is likely that your social media posts will come into play at some point during the process.
Even if you were to delete your Facebook page, Facebook can be compelled to restore access for discovery purposes.2 Beyond that, intentionally deleting a page for the purpose of removing potentially damaging information prior to litigation could result in court sanctions for “spoliating evidence.” Note that the other side must generally provide reasonable explanation for invading your privacy. But if such a basis exists, anything that you have posted is potential fair game in discovery.
Evidence: Information used by litigants to prove facts in a case is called evidence. Not all facts are admissible in a court of law as evidence, and there are rules regulating the types of information that can be admitted. Courts have a track record of admitting social media data as evidence. Though often this kind of information must be “authenticated” by the trial court, social media evidence can swing a case one direction or another. For instance, in a child custody proceeding, MySpace pictures of a mother drinking underage were admitted into evidence when determining whether a parent would be a responsible guardian.3
When posting online, remember that nothing is truly private. Judicial treatment of social media indicates that individuals should be very conscious of the legal implications of their decisions.
1. John G. Browning, Digging for Dirt: Discovery and Use of Evidence From Social Media Sites, 14 SMU Sci. & Tech L. Rev. 465, 485 (2011).
2. See Michael C. Smith, Social Media Update, 62 The Advoc. (Texas) 197, 209 (2013).
3. See Mann v. Dept. of Family & Protective Serv., 2009 WL 2961396 at *2 (Tex. App.–Houston [1st Dist.] 2009, no pet.)
