By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.
In the United States some eighty-one percent of people have some form of a social media profile. Social media is a great way to share your life with friends but it is increasingly becoming a source of evidence in legal proceedings. It is not uncommon to see that a Facebook post was the reason for the apprehension of a criminal suspect but social media is also playing a large role in civil litigation.
Gathering the Evidence
The first mechanism an attorney or investigator may use in attempting to gather social media evidence is by simply searching the individuals name. Many people do not have their social media profiles set to private which allows for a simple search of the individuals name on the leading social media websites to lead to a wealth of personal information including information that may be damaging to your case.
However, many individuals do have some level of privacy enabled on their social media accounts. In this case profiles can still be exposed by sharing content with friends who do not have strong privacy settings or through the ordinary means of discovery in a lawsuit.
In a civil proceeding, a party may obtain discovery regarding any matter that is relevant to the lawsuit, as long as such information is not protected by some form of privilege. Florida courts have already held that pictures from Facebook and other social media postings are discoverable in lawsuits. This is even true if the individual has enacted the strictest of privacy settings. Courts in Florida have effectively acknowledged that one who creates a social media account accepts that their personal information will be shared with others regardless of the user’s privacy settings.
Authenticating the Evidence
In court proceedings, it is one thing to gather the evidence and another thing to get that evidence admitted into a proceeding to be used by the judge or jury to render a decision. While discovery allows for broad requests of information, admitting a social media post at a proceeding must meet a more exacting standard.
In order for any evidence to be admitted, including social media posts, the evidence must be authenticated. The courts want to be as certain as possible that what is being admitted is not a forgery or altered in any way. This is usually done through a series of questions to a witness which include how the post was copied or saved from the website, who made the post, and who has personal knowledge that a certain individual made the post. These questions can address any other identifying features of the proposed social media evidence. Additionally, Florida courts have begun to allow expert witnesses such as internet consultants to assist in the authentication of website evidence.
Protecting your Information
The first thing everyone should do in order to better protect social media information is to make sure you take advantage of the privacy features offered by the service itself. Just as important as your own privacy settings, it is also important to ensure that those who you share information with also have strict privacy settings activated.
However, as previously explained privacy settings will not protect your information from discovery requests. The only way to truly prevent a social media post form being used as evidence is to not make the post. If you are posting something that is related or could be related to a lawsuit ask yourself if you would want the picture or post to be seen by a judge or jury. If the answer is no, do not post it. While we all want to share our lives with our friends and family, if for example you have a pending personal injury matter, the insurance company would likely be very interested in your vacation pictures as well.
Finally, once something is posted on the internet it is never really deleted as archives of the internet are being continuously made which take snapshots of the internet at certain times. So even if your post is deleted it is likely archived and may still be discoverable.
J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to firstname.lastname@example.org.
In 2017, Matt joined Clark, Campbell, Lancaster, and Munson where he practices in the area of civil litigation.
Matt is a member of the Wilson American Inn of Court, the Lakeland Bar Association, and the Polk County Trial Lawyers Association. Matt is a member of the Florida Bar and admitted to practice in the Federal Middle District of Florida and the Eleventh Circuit Court of Appeals.
Matt is proud to call Lakeland, Florida his home, where he lives with his wife, Katie, and dog, Gracie.