Using Social Media Evidence at Trial

In the last 10 years, the use of social media worldwide has exploded. “There’s a whole generation of people for whom tweeting is as natural as breathing, for whom the word ‘friend’ has become a verb, and for whom Web 2.0 is the only media platform they know,” write authors Marisa A. Tradatti and Anna C. Horevay. Facebook now has over 1 billion users—more than one seventh of the world’s population. Emails, blog posts, comments, texts, flicks, instant messenger, Craigslist, Tumblr, Snapchat, Pinterest, Twitter, YouTube, Instagram, and LinkedIn are all platforms where social media occurs. But why does this matter? Aren’t most of these sites private, for the use of only the owner and approved contacts? Not exactly. While platforms like Facebook and Twitter cannot release postings themselves, anything an individual posts is considered social media evidence and can be seen by anyone who reads it. This includes hackers—and potentially your spouse if you are going through a divorce. In fact, in some divorce cases, judges have ordered parties to share their login information with each other during litigation, making social media evidence a critical part of the case.

In a landmark case in Florida in January of 2015, a woman was ordered to submit to the court personal pictures she posted on Facebook following her accidental fall in Target against whom she had filed a slip-and-fall lawsuit. The woman, Maria Nucci, petitioned the Court of Appeals in Florida to quash the discovery order. This appeal was denied. Judge Gross wrote “Because information that an individual shares through social networking websites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one”. And so, yes, social media can be used at trial in the state of Florida. Other states have similar rulings but each state sets its own guidelines as to how social media will be handled in court.

Attorney Grant Gisondo who practices Family Law in Palm Beach Gardens and serves clients in Palm Beach, Martin, St. Lucie, Miami-Dade, Broward, Hillsborough, and Orange counties in Florida, in Washington DC, and New York recommends that any information you don’t want another person to know you had best keep off social media sites. For example, if you are contesting or moderating a final judgment for child support or alimony, and you are contending you can’t afford what your spouse says you can, if there are pictures or written information bragging about an up-scale lifestyle, a new yacht or private plane, or evidence of trips other than legitimate ones for business, if found on your social media postings, the court will consider these as evidence that perhaps you can pay what is being asked. Too, postings of you in a compromising position with a new paramour or of excessive partying with alcohol or drugs, can affect the outcome of timesharing with your minor children both in the final judgment and after, when a modification of the order can be petitioned for.

As social media continues to be more and more the way persons communicate their lifestyles hopes, and dreams, the use of pictures and information found there will become a greater part of evidence during a trial. Laws are continually changing and it is very likely the laws surrounding the use of social media at trial will become all inclusive. Just remember to use caution when posting anything on social media, as you never know when your “day in court” may come.