Most of us think of social media platforms as a trumpet for our thoughts. We share our woes, ups, and downs, and oftentimes even throw in a few strong opinions on different matters. Whether we do so in the open – transmitting our rants to hundreds of eager listeners – or in private chat threads, we should clearly understand the consequences of our actions.
“Sharing a public rant about your ex-spouse or former employer online may not seem problematic – a lot of people do that to get support and some cheering,” said Sherwin Arzani, attorney at Citywide Law Group. “However, you should remember that social media is evidence and discoverable. Depending on the situation, your opinions can either hurt and help your court case.”
Your social media posts can be used as evidence against you
Courts today are more than willing to admit social media content as a form of evidence both for and against you.
For example, in a recent personal injury lawsuit, Largent v. Reed, the plaintiff claimed that a recent accident had left her with severe physical and mental pain. During the course of the litigation, defendants presented the court with that person's post-accident photos posted to her Facebook account. These photos demonstrated plaintiff was clearly feeling well enough to engage in her daily activities, attend the gym, and otherwise thoroughly enjoy life. Presented with this information, the court ordered plaintiff to hand over her Facebook login information for further inspection.
If there’s a lesson to take away from this story it should be this: never assume that anything you share online (publicly or in private messages) is fully confidential.
“If you are involved in any case or proceeding, or even a case or proceeding that is reasonably foreseeable, think twice before posting anything that can be self-incriminating or used against you in the courtroom,” said Joseph Fantini, attorney at Rosen Injury Lawyers.
On the other hand, you should also carefully document all the digital communication you have had with another party up-to-date and be forthcoming about it if you want to maximize the success of your settlement.
Public social media posts do not count as illegally obtained evidence
Contrary to popular belief, it is legal to use communications garnered from social media sites as evidence. Judge Michael Corriero explains that “the prohibition against using illegally obtained evidence applies primarily, essentially solely, to law enforcement. It doesn't apply to another civilian.” So if you have exchanged self-incriminating messages with someone privately – e.g. through a messenger app – those would be admitted by most Western hemisphere courts without any issue. For example, in 2015 Portsmouth Magistrates’ Court in the UK admitted 143 messages dispatched via WhatsApp as evidence in a civil case.
According to Ambrosio Rodriguez, a criminal defense attorney at The Rodriguez Law Group, the same applies to photographs, taken and published by you or someone else. “If a friend takes and publishes a controversial picture showing you drunk in public you may act against them for unfairly depicting you as drunk. But if you were actually drinking at that time, these photos will be used as evidence against you in a relevant proceeding,” he explained.
Trying to delete your social media content isn’t wise during trials
“When you are involved in a lawsuit (whether as a plaintiff or defendant), the rules of evidence apply to your social media content just as they do to the discoverability and admissibility of other forms of evidence,” said Ryan Van Steenis, an attorney at Ajamie LLP, in Houston, Texas. “It is not advisable to try to delete the content you have shared online. Depending on the circumstances, such activity can be considered serious. For example, a court may find that a negative inference should be held against you for the destruction or spoliation of relevant evidence. Obviously, this can have adverse consequences to your case, and attorneys representing clients with social media properties, in other words, every lawyer in this day and age, should advise their clients how to manage their social media content accordingly. A client is permitted to adjust their privacy settings, but do not take any further actions that the court may deem as suspicious.”
Furthermore, you should not expect the encryption technology used by most modern messaging apps to prevent others from accessing your content. Even “permanently” deleted content can be recovered using new-gen forensic recovery methods.
For example, in a February 2016 court case in the United States District Court for the Central District of California, the FBI wanted Apple’s help to unlock an iPhone 5C it recovered from a terrorist suspect. The phone was locked with a four-digit password and set to eliminate all its data after ten failed password attempts. Apple declined the request but a day before the scheduled court hearing, the FBI said they had found a third party able to assist in unlocking the iPhone. They later announced that they had unlocked it.
Even if your personal device is password protected, it does not mean that the authorities cannot legally get access to it. Suspects and parties undertaking a trial can be served with a disclosure notice demanding them to reveal all passwords. Failure to comply can lead to further penalties.
Everything you share on social media can become part of the public record – whether you want it or not. So use these tips to stay safe:
1) Be a selective sharer. Always stay on the safe side and don’t share anything that you would not otherwise tell freely in public.
2) Consider using one of the best VPN services available. This helps keep your online activities protected against snooping, interference and censorship, according to TechNadu.
3) Be careful where you click. Risky apps and dangerous links sent via social media can give hackers access to spy on you, according to CBS News. Also, don’t respond to messages from strangers.
Date Posted: Sunday, May 5th, 2019 , Total Page Views: 951
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