A man in the middle of a divorce told his wife he was away on business. Then photos of him with his girlfriend in the Caribbean showed up on Facebook…and later, in court. This is a real example of how social media is increasingly used as evidence in court. “Social media has changed the way we practice,” says Alisse Camazine, a family law attorney with Paule, Camazine & Blumenthal. “People are stupid enough to put these things on their Facebook accounts. It comes up all the time, and it’s unbelievable.” She notes that social media postings are used in about 25 to 30 percent of her cases. Joe Lambson of Hais, Hais, Goldberger & Coyne puts the number at a whopping 75 to 80 percent in his practice.
Lambson says he sees social media used in litigation in four principal ways: first, as evidence of action, as in the example above. The second way is as evidence of time and place. “Think Twitter or Facebook: When you upload something onto social media, you’re also frequently uploading where you were and when you were there. If I need to prove you were supposed to be someplace at a certain time and you weren’t, I can show what you were doing at that time.” This might come to bear in a custody hearing, for example, if a spouse is supposed to be taking care of the kids and their friend posts a photo of them at a bar instead, he notes.
The third way, Lambson says, is as evidence of communication. For example, if a wife suspects her husband is having an affair and he denies knowing the person in question, it can be proven they know each other if they’re communicating on Facebook. And finally, social media can be used as evidence of a state of mind.
Camazine notes that she always advices her clients who are considering entering into litigation to stop using social media. “Everybody wants to put on Facebook what they did last night. But with litigation, people need to realize everything they do is going to be under a microscope.” And deleting posts during litigation is similar to destroying evidence, Lambson notes. “The first thing I do is send an anti-spoliation letter, which says not to delete your Facebook, Myspace or Twitter accounts, because all of this may be used as evidence during the proceedings.”
Lambson adds that while privacy settings might give a sense of security, they’re essentially meaningless when it comes to litigation. “Just because somebody is your Facebook friend doesn’t mean they’re really your friend. You never know who is telling what to whom.” He suggests restricting who can post on your wall and setting your account so that your approval is needed before comments about you go live. “In a sense, social media is replacing private investigators. Why do I need to pay somebody to follow you to the bar, when your friends are taking pictures of you and posting them online? And the irony is that people are doing it to themselves.”
With 65 percent of adults using social media, the repercussions extend to all facets of our lives. Stefan Glynias of Lashly & Baer notes that while businesses are increasing their online presence, they also can open themselves up to unintended embarrassment or even corporate spying. “Social media has now become a necessary element of relationship-building. To the extent that businesses are encouraging their employees to use social media, potential wrongdoing that occurs can come back to the employers and businesses.” He recommends that companies create a policy on social media. “They should use language that is general, because who ever thought of ‘sexting’ before it started to happen, or that a congressman would be taking pictures of his private parts and emailing them to a girlfriend? But that happened.” The standards of behavior for social media should be broadly defined and consistent with overall corporate policies, he notes.
In certain fields, it’s even more important to have standards regarding what type of information can be shared. An employee might post something as innocuous as Flying to Dallas to meet with potential buyers, but Glynias says, “If I happen to know their business and they have a particular mass retailer in Dallas, I can use that to my advantage or their disadvantage. If someone calls a friend and tells them I’m going to Dallas, it’s not going to reach as many people as putting it on a Facebook wall. That’s where social media has changed the magnitude of risk.”