As in with all pieces of evidence, we must ask the same question when it comes to Social Media Posts. Shall we let it in? However, unlike a contract or a scribble on a sheet of paper, social media posts pose a different, yet similar hurdle to clear to admissibility. As would be the case when trying to admit a contract or a scribbled note on a sheet of paper into evidence there are questions of authentication, relevance, is it more probative than prejudicial, and are there any possible hearsay objections or exceptions.
Access to social media posts may be difficult to come by as Social Media platforms are unlikely to provide access to user’s content due to the Stored Communications Act. However, local law enforcement might be able to secure pertinent information if it is related to a criminal investigation.
In Trail v. Lesko, No. GD-10-017249, 2012 Pa. Dist. & Cnty. Dec. LEXIS 194 (C.P. July 3, 2012). The judge gives examples of cases where access to social media was granted by the court due to the user having already posted “evidence” that was accessible by opposing party and therefore showing a likelihood that additional information that was pertinent to the case would be located therein. However, in the case at issue the judge ruled against allowing access to the two specific Facebook accounts stating that although the level of intrusion into a Facebook account is considered to be low there still remains a privacy aspect within the site itself where a user can restrict access to just “Friends” and if the opposing party were to be granted access it may “cause embarrassment if viewed by persons who are not ‘Friends’” Id.
Although there is now some precedence for allowing social media postings through discovery there still remains the problem of authentication of posts and photos. Wherein a post that merely states, “Having a great time with friends” and then “tags” a particular location might be easier to authenticate to show that a party in the case was at a particular place at a specific time, there is also the issue of photographs being altered. With Photoshop technology comes the possibility of altering photographs to have a party look like they are in either a different location or holding an item that was not in the original picture. To combat these kinds of situations counsel would have to pay for forensics to be done on the photograph to prove whether it is the original or if it has been altered in one way or another.
As with most items of discovery, social media postings run into the same issues. Counsel must be able to show that the item’s relevance outweighs the intrusion into the party’s privacy. Furthermore, there is the question on whether the posting is more probative than prejudicial and whether it would survive any hearsay objection. Although there are hurdles to introducing social media posts the potential payoff for getting the items introduced could be extremely beneficial to your case. As social media is such a personal aspect of a person’s life it could almost be considered as a party testifying against themselves depending on the nature of the post.
If any of resonates with you, our experienced team of attorneys are here to help. We can be reached directly at (786) 837-6787 or via email firstname.lastname@example.org. Always be cautious of your posts on social media. The laws are being changed as the issues surge.
*Disclaimer: This blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*