Social Media and the Law
Posted on Tuesday, June 28th, 2016 at 8:53 am
The following post is part of our Law Student Blog Writing Project, and is authored by James Haney, a Juris Doctor student at NKU Chase College of Law, Northern Kentucky University.
Social Media and the Law
The Effect Your Social Media Account Can Have on Your Personal Injury or Criminal Defense Claim
Social media is arguably the largest collective platform of information the world has ever seen. It brings people, ideas, thoughts, facts, and opinions together, in a way that nothing else has the ability to do. People put so much of their personal information on the various social media platforms, assuming safety as a given. As is the case with most things in life, nothing is a guarantee, though. Regularly, whole sites or individual profiles are hacked, resulting in information being leaked to the public, or used in nefarious and malicious ways. Recall the mass hacking of Apple’s Cloud, in which a number of celebrities had their personal pictures stolen, and uploaded to public sites. It is not only hackers who can find their way into someone’s personal social media site, though. Often, attorneys and police investigators will use the law to allow them to collect information from a site, which would otherwise have been considered private information.
Recently, the Florida Bar’s Ethics Committee returned an opinion stating that it is perfectly acceptable for a lawyer to advise their clients to make any social media profiles “private,” so as to make it impossible for the general public to view information. This would seem like a no-brainer, but, it apparently bears repeating. A 17 year old in Timmins, a city in Canada, was arrested by the Timmins Police Service after a video was uploaded, which depicted the assailant attacking another person. The person was found by police, and charged with assault. So, if your lawyer has not already instructed you to do so, keep your profiles private.
However, if already under investigation, it is illegal for a person to destroy evidence that may reasonably be used in court, in regards to whatever case it is relevant to. If removed, the data must be preserved in some way if it is known or reasonably should be known to be relevant to the reasonably foreseeable proceeding. Essentially, if you are under investigation, do not, DO NOT, erase or destroy anything that may be used as evidence. That, in itself, is a criminal offense. I personally worked on a case in which a person burned a diary that had been marked for evidence, and then claimed that the information held within would have exonerated them.
Discovery is the phase of a lawsuit, or trial, in which the opposing sides gather as much evidence and information as possible. Knowledge is always key. During this time, a lawyer may petition for discovery of any and all social media sites known to be used by the client on the other side. Only information that is relevant to the trial at hand is considered admissible, but it is all made available. By all, I mean friends, followers, suggested contacts, sent and received messages, contents of any inbox, activity, tweets, mood updates, notifications, personal information, and basically anything else housed on the site. In another case I assisted on, the popular messaging application, Kik, was used to recover messages sent to an underage plaintiff. On the same case, I spoke with the lead attorney, and asked about where that information could be reached, if the application had been deleted. Her response: “everything is stored somewhere.”
Relevance of information to the case is entirely up the the trier of fact, which is the judge who presides over the case. If I took anything away from learning evidence, though, it’s that everything is relevant. Obviously, that is a bit of an overstatement, but not much of one. Relevance deals with getting from A to B. If an argument is made which the judge finds convincing, then anything may be deemed relevant, even if it may not be immediately obvious on the surface. A picture of you in the park may well be relevant when trying to attain access to your Twitter feed.
In Romano v. Steelcase, 907 N.Y.S.2d 650 (Sup. Ct. 2010), the defendant petitioned for access to the plaintiff’s Facebook content, both current and past, claiming that it was relevant to the extent and nature of the plaintiff’s injuries. The court noted that the plaintiff’s public profile page showed her outside of her home. This was only a problem because the plaintiff had claimed that the injuries she had sustained had kept her confined, almost entirely, to her bed and to her house. In this case, the judge determined that information may have been held within the private portions of her profile, which could further act as evidence for or against her claim. The court found that the privacy concerns of the plaintiff were outweighed by the potential for relevant information to be found.
I think this may be the simplest way to think about it, in terms of realizing just how wide open your information is, once it’s online. A social networking site (Facebook, Twitter, etc.) is where you go to share your life with other people. Those other people have no limit as far as what they do with said information. According to Zimmerman V. Weis Mkts., Inc. 2011 WL 2065410 (Pa. C.P. May 19, 2011), any relevant, non-privileged information that a person puts up on their social media account, and is shared with others, can be used by defendants as evidence. If you find yourself in the midst of a suit in which social media may be used, open it up to your attorney, and make certain they 1) find out what is on the site, 2) find out what the opposing side has seen, and 3) figure out the status of the images as fair game.
To summarize, never assume anything posted on social media is actually private. Should you find yourself involved in a lawsuit, it is entirely possible that a judge will order discovery of your accounts. Beyond that, anything shared with another person can be considered public information. I leave my accounts public, purely for the intent of marketing. If you have no reason to make your information, posts, pictures, etc. viewable to everyone, don’t. Be careful what you post. It is very likely that, so long as the request for discovery is narrowly tailored, a judge will grant an attorney the right to dig into parts of your social media outlets. It is always best to assume that anything that goes on the internet is open to anyone. Keep that mindset, contact an attorney, and be smart.