Today social media use is an integral part of everyday life for many. There are numerous platforms people use for communication, such as Facebook, Instagram, Twitter, Snapchat, TikTok, emails, texts, etc. Electronic communications and interactions on social media can be easily done with the use of smartphones. Statistics show there are currently an estimated 6.8 billion smartphone users in the world.
While technology has made life more convenient and has offered new innovative ways to communicate, those communications can pose significant risks if anyone finds themselves in a lawsuit or a potential legal claim.
Social media activities are sometimes posted in a public setting where everyone can see them, sometimes these activities are intended to be private, only for a select few. However, information contained within social media accounts, whether public or private, can be discoverable in lawsuits, and can be used against individuals in court. A few examples of how social media activities can impact or undermine claims in litigation include the following:
- Personal Injury: In a personal injury claim, an insurance company or defense attorney could discover the claimant posting pictures or videos showing them on vacation doing aggressive physical activities, such as skiing, kayaking, mountain climbing, while at the same time the claimant states that they are seriously injured and unable to perform basic activities of daily living. Even if the claimant attempts to explain that they are just trying to go on with their life and are in significant pain when doing these activities, these social medial posts can undermine their entire claim.
- Business Litigation: Texts and emails can undermine a party’s argument that they did not communicate with the other side, or that they did not have a contract or an agreement. Texts and emails can be severely damaging in any type of lawsuit because the parties who are writing those communications do not intend or expect them to be shown in court or used against them.
- Family Law. Texts, emails and social media posts can be very damaging in divorce cases showing the activities of the parties for example, the negative or hostile interactions they have with each other, and/or with their children and whether they have engaged in inappropriate behavior.
- Defamation. Posting defamatory content online about a business or another individual may expose the person who posted that content to a lawsuit for defamation.
- Employment. Making comments about one’s employer or job online may get someone fired or prevent that person from being hired by prospective employers. Social medial posts, texts and emails may also be used in any dispute between an employer and employee regarding any claims, including those based on wrongful termination and/or discrimination. Social media posts by individuals showing photographs or videos of them doing activities that some may seem inappropriate, may also have a negative impact on the individual as far as their current or future employment.
- Criminal Cases. Social media posts, videos or pictures can be used to support the prosecution of crimes. Additionally, information from smartphones and apps can also be used to track someone’s location which could potentially impact the investigation of various crimes as well.
If someone deletes their social media posts and regularly deletes their emails and texts, will that help protect them from having this information used against them? The answer is: “It depends.” If someone keeps their posts, emails and texts private for the most part and routinely deletes them, that will be helpful in maintaining privacy. However, what typically happens in a lawsuit is that when a party files a lawsuit based upon a potential claim that they have against someone else, it is only after the filing of the lawsuit that they engage in what’s known as “discovery,” and it is at that time that they are able to uncover the treasure trove of texts, emails and any social media posts that the opposing party has. Even if the opposing party has deleted any potentially incriminating evidence prior to the lawsuit, today’s technology will allow vendors who have expertise to be able to retrieve deleted information that can be used against that party. Additionally, it may be possible to subpoena someone’s search history on Google or other platforms even if it is deleted from their smart device.
It is noteworthy that once a lawsuit begins, if a party intentionally deletes social media posts, emails or texts, that party can potentially be accused of destroying evidence which will negatively impact their position in the lawsuit. Therefore, deleting social media posts, emails or texts comes with a risk, and may be contrary to that jurisdiction’s laws if there is a potential claim or lawsuit pending.
In conclusion, one needs to be extremely careful of what they post, how they post it, and what they text and email and to whom, as there may be a risk of creating a permanent electronic trail of one’s activities which can have significant ramifications in the context of a lawsuit or other aspects of that person’s life. If you are ever in a situation where your social media posts or electronic communications may be used against you in court please contact one of our experienced attorneys.