Social Media as Evidence, Part I

For the past several weeks I have discussed the concerns of just putting things on your Facebook, Twitter, and other social media accounts.  I shared with you a few of the scenarios and stories that companies, employees, and people go through when social media goes awry at the workplace.

However, how does this stuff come up, legally speaking?  That’s where we have the Rules of Evidence.  For you readers that are laypeople I will try to keep this as simple as possible, but bear in mind you will be exposed to some legal terms.   For attorneys and law students, we will be sticking to Federal Rules, even though I am in Hawaii.

Social Media evidence does not simply go away even though you forget you posted something a year ago.

The Starting Point: Relevancy

Generally speaking, for evidence to be admissible it has to be relevant.  Yes, it is an extremely low threshold and in the realm of fast postings, easy tweets, and tons of drinking pictures that is kind of scary.  Is it relevant that you posted a picture of you jumping up and down partying at the bar?

Yeah, it might be, if you are in a battle over workers’ compensation with your employer and its insurance company over your work-related back injury and that picture was taken after your claim.

Thus, many things in the realm of social media become pieces that lawyers will use to try and craft a story on a matter in a case.  Another words, all those posts, tweets, pics, videos, and whatever else you are throwing up on your account could be fair game as evidence.

What about my Right to Privacy?

While the threshold for admitting evidence is relatively easy, it just needs to be relevant, don’t you lawyers have all these exceptions to the rule?  Can I not claim the stuff I put on my Facebook and Twitter accounts is private stuff?

Yes, we have exceptions.  But, the Right to Privacy in social media is NOT one of them.   This case simply illustrates the principle of why you cannot post or tweet something believing it will be protected.  In Romano v. Steelcase, Inc., 2010 WL 3703242, the New York Supreme Court ordered one party to turnover their MySpace and Facebook content to the opposing party.  For this matter content includes photographs, posts, and even recent deletions.  Why?  The court stated when a person chooses to disclose or share such information their ability to then say that is private is weakened.   If you choose to put it up, then how can you reasonably say you think it will be private?

What about the Terms of Service or Privacy Policy? Won’t that Protect Me?

Facebook, Twitter, and all the other social media sites all have varying Terms of Service and Privacy Policies, but they do remind you that while striving to maintain privacy and giving you the utmost control over your information there is no such thing as perfect privacy in social media.

Risks inherent in sharing information. Although we allow you to set privacy options that limit access to your information, please be aware that no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook. You can reduce these risks by using common sense security practices such as choosing a strong password, using different passwords for different services, and using up to date antivirus software.

(emphasis added) Take from Section 8 of Facebook’s Privacy Policy page.

If You are Worried About It, Don’t Post It

As many professionals both in social media and legal circles have told me.  Once you post something it does not go away.  Therefore, in situations where you claimed one thing to one person, but your social media posts clearly shows something else you could find yourself in trouble unexpectedly.  For instance you called in sick to work, but you are showing pictures of yourself at the beach.

Bottom line:  If you don’t want something used against you in court, don’t post it.

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Next time, I will continue the discussion of social media information usage in trial and litigation work and some of the rules and cases that are shaping the laws interaction with these forms of communication.

Don’t forget if you enjoy this series or any of the other series on my blawg feel free to subscribe in the right-hand corner of this page to receive e-mail updates on posts.  If you are on Facebook be sure to “Like” “Ryan K. Hew” to get updates there as well.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

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