Just about everyone is on social media these days. Facebook, Instagram, Twitter, Snapchat, and countless other platforms have become an integral part of many Americans’ everyday lives. It is not hard to see why social media has such a mass appeal; the ability to stay connected with family members and friends in various parts of the world and exchange messages, share news, photos, and status updates in real time is a revolutionary way to communicate.
Social media has definitely brought our world closer together, and under normal circumstances, there is nothing wrong with being active on your favorite platforms, as long as it does not consume so much of your life that you do not have time for other important priorities. If you are involved with any type of litigation, however, it is a totally different story.
Whether you are in the middle of a divorce, personal injury claim, business dispute, or criminal proceeding, your social media activity can be used against you to damage your case. Here are a couple of examples of what can happen if you remain active on social media while you are involved in a legal proceeding:
Scenario 1: Let’s say you were in an auto accident where you sustained whiplash injuries and injuries to your lower back. Your neck is stiff, and you have to wear a brace for a while, and your back pain is so bad some days that you can barely walk. The injury is expected to keep you out of work for several weeks, and you are also feeling anxiety and depression that is related to the trauma of the accident and the uncertainty of when your life will return to normal.
During the midst of your accident injury claim, you post status updates to let your Facebook friends know how you are doing. You are generally an optimistic person and you don’t want your friends to worry, so your posts are typically upbeat, letting your friends know that you are feeling better and that you hope to be back at work soon. You also post some photos of you sitting in a spa without your neck brace on while you are enjoying a relaxing weekend with your family. Investigators for the defendant (or their insurer) uncover your Facebook posts and use them to claim that your injuries are not nearly as bad as you are alleging.
Scenario 2: You are in the middle of getting a divorce, and of course, you have told several of your friends about it. You are having a dispute with your (soon to be) ex about your kids and the parenting schedule you are trying to work out. In the heat of the moment, you post something derogatory about your spouse and how he/she treats the kids. There might be some truth in what you posted, but much of it is exaggerated for effect. Posts like these are never looked at kindly by family courts, they are usually seen as an indication of someone who is angry, bitter, and perhaps emotionally unstable. Having this type of post out there could damage your arguments regarding how much time you should be allowed to spend with your kids.
Why you Should Not Post on Social Media during a Legal Proceeding
When you are in the middle of litigation, the best course of action is not to discuss the details of it with anyone other than your attorney. And this definitely includes posting anything about the case on social media. Here are a few things that it is important to know about social media and legal proceedings:
You Have No Right to Privacy with Regards to your Social Media Activity
Contrary to popular belief, it is not illegal to use information obtained from a plaintiff’s or defendant’s social media account in a court of law. This applies not only to comments and photos that you may have posted yourself, but also photos from someone else’s social media account that you are tagged in. It is important to note that even potentially damaging messages that are sent privately (through a messenger app, for example) could also most likely be admitted as evidence without any objection from the court.
Strict Privacy Settings May Not Protect You
You might be thinking that all of this sounds bad, but it won’t affect you because you have the strictest privacy settings for your social media accounts. Don’t count on it! Investigators these days are very tech savvy, and it is their job to uncover information that is not easy to find. They know a lot of tricks to get inside of your network, such as creating a familiar profile and becoming a friend of a friend or some similar scheme. So again, we must reiterate, do not count on privacy settings to keep your social media activity from being uncovered during a legal proceeding.
Deleting Social Media Posts could be Considered Spoliation of Evidence
Once you say something electronically, you really can never take it back. And when you are involved in litigation, the rules of evidence apply to your social media activity just as they do to any other form of evidence. Your social media posts are discoverable, and they can be subpoenaed by the other side if it comes to that. And if you delete your posts, this could be considered spoliation of evidence, depending on the circumstances.
How Should I Deal with Social Media During a Legal Proceeding?
The short answer to this question is – take a break from social media if you are involved in any type of litigation. You should even go so far as to suspend your accounts so you cannot be unknowingly tagged by someone else. If you do not think you can quit social media cold turkey, then at the very least, strictly follow the advice of your legal counsel. Your attorney knows the specifics of the case you are involved in, so if you want to post something on social media, do not do so without talking to them first.