Those on both sides of the law need to exercise care when bringing social media into the legal arena. It can be a slippery, complicated, but very necessary slope. For example, one must always assume that whatever they do or say is “on the record.” However, on the contrary, it is also known that information gathered from social media may be inaccurate and not immediately taken at face value unless it has been properly investigated.
An article on Huffington Post Crime by Brad Reid, Senior Scholar, Dean Institute for Corporate Governance and Integrity at Lipscomb University, highlights several (but not all) ways that social media impacts law:
“Cleaning Up” Social Media Profiles can be Labeled as Destruction of Evidence
According to Reid, “The major legal issue, when litigation is anticipated or is occurring, involves the potential destruction of evidence. Altering privacy settings, deactivating accounts, and deleting content could all fall under unlawful destruction of evidence. This has both civil and criminal implications. ‘Spoilation of evidence’ is the traditional legal phrase utilized in civil lawsuits. Bar Associations are developing ethical standards for attorneys to follow in advising clients concerning their existing social media content.”
Utilizing Information from Social Media as Evidence in Trial
Over the past few years, we have highlighted an increasing number of cases in which judges have deemed social media evidence admissible in court, as when social media postings contradict injury claims, any questions about “privacy” are swiftly overruled. Methods vary in obtaining the evidence, whether by conducting a social media investigation or by subpoena to the social media entity itself (Stored Communications Act – 18 U.S.C. Secs. 2701-2712).
But here’s the tricky part. Reid notes that, “Introducing the contents of the social media into evidence requires that it be ‘authenticated.’ While procedural rules vary somewhat from state-to-state, the following outline is typical. If the author’s testimony is unavailable, then another witness must testify that she or he knows the author in question, that the evidence offered accurately reflects what is presented on the social media site, and that some of the content would only be known by the author or poster. The standard for authentication is not especially high and relates to what a ‘reasonable’ person would find acceptable.”
The following legal areas impacted by social media are listed below to demonstrate relativity to our industry:
Employment Law/Workers Compensation & Personal Injury Litigation
Vacation photos/activity videos/postings/etc. may contradict disability/workers compensation claims.
Social media postings may reveal assets and sources of income.
Evidence of one’s principal residence may be provided.
Social media provides evidence that may either confirm or dispute an asserted physical injury or emotional distress. Photos of physical activity and apparent happiness may undermine claims.
As an example, traffic accident litigation may be supported by social media content that demonstrates intoxication or reckless conduct.
Ultimately, the acceptance of social media evidence has propelled our industry even further into the digital age and has altered the way we view claims (for the better, of course)!