Social Media Evidence in Case Law: Recent Developments

In today’s digital age, social media platforms like Facebook, Twitter, Instagram, and LinkedIn have become integral parts of daily life. With billions of active users, these platforms generate vast amounts of personal and professional content daily, much of which finds its way into courtrooms across the world. Social media evidence, once a novel and somewhat controversial area of litigation, is now routinely used in legal cases ranging from divorce and employment disputes to criminal prosecutions and personal injury lawsuits. The use of social media evidence in case law presents both opportunities and challenges for attorneys, particularly as courts continue to grapple with issues of privacy, authenticity, and the weight of digital content in legal proceedings.

The Rise of Social Media Evidence

Social media evidence plays an increasingly important role in modern litigation. From photos and status updates to tweets and direct messages, social media platforms offer a treasure trove of information that can significantly impact the outcome of a case. Examples of how social media evidence is used include:

Criminal Cases: Prosecutors often rely on posts, photos, and videos to establish timelines, prove intent, or demonstrate a defendant’s actions before or after a crime. 

Family Law Cases: In divorce and child custody cases, parties may use social media to prove infidelity, demonstrate unfitness for parenting, or expose inconsistencies in testimony.

Personal Injury Lawsuits: Defendants in personal injury cases may use social media evidence to challenge claims of injury severity, as plaintiffs sometimes post content that contradicts their alleged injuries.

The growing role of social media as both a source of evidence and a platform for public discourse has reshaped the landscape of modern litigation. However, as social media evidence becomes more prevalent, it has introduced a set of legal challenges, including issues of authentication, relevance, and admissibility.

Key Legal Challenges

While social media offers a wealth of potentially relevant evidence, using it effectively in court requires addressing several key legal challenges.

Authenticity of Social Media Evidence

One of the primary challenges in using social media evidence in court is proving that the content presented is authentic. Unlike physical evidence, which can often be verified through established chains of custody, social media posts can be altered or manipulated. Courts, therefore, require a high level of proof to authenticate social media evidence. This can be done through:

• Testimony from the person who created the content (i.e., the social media account holder).
• Metadata analysis to demonstrate the source of the post.
• Witness testimony to corroborate the content’s accuracy.

Privacy and Constitutional Issues

Privacy remains a significant concern in cases involving social media evidence. Social media accounts are often considered private spaces, and users have an expectation of privacy when posting personal information. However, the legal landscape regarding privacy rights on social media platforms has evolved significantly.

For example, the court in Rosario v. Clark County School District found that there is no reasonable expectation of privacy in Twitter posts. The court found that even if a user sets their account to “private,” sharing content with followers exposes it to potential dissemination. Thus, when the plaintiff’s tweets were shared with school officials, no Fourth Amendment violation occurred. 

The Carpenter v. United States decision by the U.S. Supreme Court (2018) marked a significant development regarding privacy rights and government access to data from social media platforms. In Carpenter, the Court ruled that the government must obtain a warrant to access historical cell phone location data, a decision that signals an increased focus on privacy protections in the digital realm. While the case focused on cell phone data, its reasoning has implications for social media privacy.

In family law and employment law cases, individuals may argue that their social media profiles should be protected by a reasonable expectation of privacy. Courts are often required to balance privacy interests with the need for relevant evidence. However, family court judges frequently do consider various forms of documented evidence, such as texts, voicemails, social media posts, medical records, photos, and police reports, often in domestic violence cases. As the court in In re Marriage of Brewster & Clevenger (2020) noted, “writings as defined in Evidence Code section 250 take many forms in 21st century courtrooms, and are not limited to ink and paper.”

Best Practices for Handling Social Media Evidence

Given the complexities involved in using social media evidence, legal professionals must take care in how they approach this type of evidence. Below are several best practices for handling social media evidence:

Establishing Authenticity: Always gather metadata and corroborating evidence to prove the authenticity of social media posts. Consider consulting with experts in digital forensics.

Documenting and Preserving Evidence: Be proactive in preserving social media content that could be relevant. Take screenshots, save posts, and secure any relevant accounts or profiles.

Privacy Considerations: Be aware of the potential privacy issues when collecting social media evidence. Ensure that you comply with applicable laws regarding consent and privacy.

Regular Training: Legal professionals, especially in-house counsel, should regularly train their teams on the nuances of social media evidence, including how to recognize and handle it.

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