Can a Post (Tweet, update, snap, etc.) be used as evidence? As with all things legal, it’s in the details; what are you trying to prove; what are the Posts demonstrating; and what corroboration do you have? Beyond that, what are the standards of that particular jurisdiction, or even court, and, can the Post be authenticated?
As social media is fairly new, whole new types of cases are yet untried or working there way through the courts. While they are some precedents set, and some laws that apply, social media is offering up an abundance of new, unique situations that will test the courts for some time.
Luckily, that doesn’t mean that it’s a free-for-all. While the field of social media evidence is new, the basic infractions are not. Thus, we can look at previous cases where the breach is similar and judge the action regardless.
while electronic communications can present distinctive issues, they “may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of `distinctive characteristics’ in the document that identify the author.”
That is, social media evidence is just like any other evidence, and the courts don’t need to treat it any different. Of course, it’s the distinctive issues, that we have to look at; who owns the data; what rights do we have to that data; what responsibilities do we have? While, at first glance, there might seem to be clear cut answers, subtle technological, jurisdictional and legal issues come into play.
Read any social media network contract (I dare you). According to an article by The Telegraph, “you may have already forfeited any sort of intellectual property rights you may have had to such content.” If you are trying to deliver evidence you might not even have the rights to YOUR content, let alone someone else’s content. Of course, Facebook, Twitter, etc. tend to play nice with court orders. But their servers, business, and operations are all US based. What if the court order is not US based? Or, the social network is beyond US Laws?
Public or Private Feed?
Another factor is if the feed is public or private. A public feed, by its nature, is accessible to anyone and capturing data is relatively straightforward. However, with a private feed, when push comes to shove, a court must be convinced that the possible value of the discoverable information is greater than the right to privacy.
The owner of the feed has a duty to preserve the data if they reasonably foresee the social media is potential evidence. Do not delete the content; courts will likely see that as Spoliation and sanctions can be significant.
If the parties don’t come to some reasonable ground rules for Discovery, this process can quickly become a quagmire. One side can try going on a fishing expedition, and attempt to collect every last shred of possible online material. The other side can fight releasing any material, no matter how mundane. The courts frown upon both positions; they add complexity, cost and wastes everyone’s time. If the evidence is relevant, it should be released, as the courts will release it in due course. If not, why bother asking for it?
Unfortunately, the determination of relevancy is not set in stone, and not every lawyer wants to smooth the process.
That’s why, when possible, collect the social media evidence as soon as possible. That way, you don’t have to fight for access, you already have it. Also, make sure that you have the evidence in an authenticated manner.
WebPreserver is an innovative, archiving resource for litigators, legal enforcement officials, and digital forensic experts. With the installation of a simple plugin, you can capture snapshots of content from websites, blogs, and social media. Keep these snapshots in our cloud or download when you need them. All content is authenticated for use as evidence in litigation by a secure time stamp and e-signature.
How WebPreserver can be of use to your firm.
WebPreserver provides a tool for both sides of litigation to preserve evidence to support and protect (future or current) cases and to archive content in the likelihood of edits, tampering or deletion.
This technology takes the onerous, costly responsibility out of monitoring and social media content as part of eDiscovery proceedings, whilst also enabling you with the additional ability to store, organize and share files securely with clients and colleagues.
The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.