Written by: Brad Reid
Social media, broadly defined, is having a powerful impact in the U.S. legal environment. Additionally, as social media crosses national boundaries, global legal concerns, not addressed in this brief comment, must be considered in practice. The following limited and incomplete points illustrate how one must exercise care in the social media legal world. Most individuals understand that what is communicated in the public domain is subject to research. Simultaneously, unthinking actions contradict this knowledge. There is no traditional “reasonable expectation of privacy” in publicly available information. Also, one must always assume that speech and actions are “on the record.” However, as is well known, social media information may be inaccurate and should never be blindly taken at face value.
In the interest of brevity, the following commentary only provides a minimal number of legal citations. In all areas, consult an experienced attorney.
Legal Risks in “Cleaning-Up” Social Media Profiles
The major legal issue, when litigation is anticipated or is occurring, involves the potential destruction of evidence. Altering privacy settings, deactivating accounts, and deleting content could all fall under unlawful destruction of evidence. This has both civil and criminal implications. “Spoilation of evidence” is the traditional legal phrase utilized in civil lawsuits. Bar Associations are developing ethical standards for attorneys to follow in advising clients concerning their existing social media content.
Introducing Social Media Information into Trial Evidence
Trial attorneys will likely investigate the social media information of potential trial jurors. This is considered ethical and diligent. Jurors, and potential jurors once jury selection begins, are restricted in their use of social media, email, and Internet searches during the trial and deliberations. Many decisions have been reversed based upon this juror misconduct. However, the legal system should make reasoned adjustments in recognition of the ease and reality of computer-mediated interactions and information.
The federal Stored Communications Act (SCA) (18 U.S.C. Secs. 2701-2712) broadly states that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” (18 U.S.C. Sec. 2702(a)(1). The main exceptions to the disclosure prohibition are law enforcement and governmental entities that have a good faith belief that an emergency situation exists. Typically a subpoena is served on the entity. However, most civil lawsuits are excluded. Nevertheless, when social media will contradict injury claims, privacy rights may be overruled by a court.
A litigant may simply conduct her or his own social media investigation or utilize formal legal discovery procedures. Of course, the party whose social information is requested may voluntarily authorize its release. Parties may stipulate that the offered evidence is accurate. Another approach is to assert that the postings are contemporaneous business records.
Introducing the contents of the social media into evidence requires that it be “authenticated.” While procedural rules vary somewhat from state-to-state, the following outline is typical. If the author’s testimony is unavailable, then another witness must testify that she or he knows the author in question, that the evidence offered accurately reflects what is presented on the social media site, and that some of the content would only be known by the author or poster. The standard for authentication is not especially high and relates to what a “reasonable” person would find acceptable.
The following twelve, of many, legal areas impacted by social media are listed alphabetically with very brief and incomplete examples or comments:
1. Social media advertising is potentially subject to regulatory rules. The Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), among other agencies, have broad statutory authority. While few precisely targeted social media standards have been set, consult an experienced attorney before acting.
1. Industrial organizations or associations, in the manner that social media communications are worded to members, may provide evidence of “signaling” concerning unlawful price fixing, market divisions, or bid rigging. This may hinge on how a “reasonable person” in the particular trade would understand the wording. Careless language, without adequate legal review, should not be utilized.
Attorney-Client Privileged Communications
1. Utilizing email or other social media to communicate with one’s attorney may inadvertently waive (give up) the right to keep these communications confidential. While email may have a standardized ending paragraph that it is intended to be confidential, this may not always be effective.
2. Storage of communications in the cloud may sometimes waive privilege. Bar Associations are starting to address this issue.
3. Security firewalls and encryption provide solid technologically based arguments that the communication was intended to be confidential.
Bankruptcy and Debtor-Creditor Situations
1. Social media postings may reveal assets and sources of income.
2. Intent to defraud creditors is sometimes revealed on social media.
3. Evidence of one’s principal residence may be provided. Residency may be legally significant in numerous creditor and taxation situations.
1. Postings and video of criminal acts provide evidence for prosecutors.
2. Evidence of gang affiliations may be provided or potential inter-connections in an ongoing criminal enterprise may be revealed.
3. Social media may be utilized to reveal the identity of criminals caught on surveillance cameras.
4. Endangered children and other “be on the lookout for” alerts utilize a variety of social media.
5. Sexting (sending sexually explicit images) is a crime but there is a legislative movement to reduce the penalties when all the participants are minors.
6. Due to First Amendment protections it is difficult to write an anti-cyberstalking statute. Some prosecutions utilize related statutes addressing threats or harassment.
7. Police and administrative surveillance activities, including reviewing open social media, do not require a search warrant. “Reasonable suspicion” is typically not required in surveillance. Additionally, courts tend to hold that individuals lack “standing” to sue concerning broad data collection. New technologies make it increasing easy to review large quantities of data. What agencies are authorized by law to collect specific types of information is an ongoing issue.
1. Defamation involves false statements that damage character or reputation. Libel (written) and slander (spoken) are subsets of defamation. Libelous statements may appear in social media. The difficult issue is whether or not one may compel the revelation of the identity of anonymous posters. Many contemporary cases utilize a balancing test between the First Amendment right to anonymous speech and the strength of the defamation claim coupled with the necessity for disclosure as the only method to obtain redress of the injury.
2. A related series of legal issues surround anonymous online reviewers of products and services. May consumer contracts provide enforceable financial penalties for negative reviews? Some courts have classified these reviews as commercial speech having less protection than religious or political speech.
3. Numerous decisions cite a provision within the Communications Decency Act as providing Internet service providers with immunity from defamation claims. “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. Sec. 230). However, if the service provider either creates the content or provides editorial commentary on the content, that activity may provide a basis for liability.
Divorce and Family Law
1. Evidence of affairs is provided by social media such as the Internet, Facebook, and Dating Services.
2. On-line commentary by spouses and children indicate state of mind, both positive and negative, and fitness to have custody.
3. Evidence of assets, job prospects and resources may be available.
4. Violation of custody orders and travel restrictions may be provided by photos and vacation information.
5. Violation of protective orders and stalking may occur through “pokes,” “friend requests,” and Tweets.
6. A variety of Facebook or Internet friendships may indicate potential bias and connections by experts, professionals, and others who may testify.
1. Vacation photos and activity videos may contradict disability claims.
2. Under the federal National Labor Relations Act (29 U.S.C. 151 – 169), employees have the right to engage in self-organization and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (NLRB) interprets social media as a potential form of protected employee communication if utilized for work-related subject commentary.
3. Employers frequently require employees to surrender privacy rights when computers, cellphones, internet access, email, etc. are provided by the employer. Employers typically own the contents of company social media accounts and may prevent former employees from utilizing or in any manner profiting from them. Social media usage may be tied to a non-competition agreement. These provisions tend to be legally enforceable.
4. Public employees in particular may have both First Amendment and Fourth Amendment protections when utilizing social media. The U.S. Constitution restricts the actions of government, including governmental employers.
5. Social media, especially email, may provide evidence that supports a claim of unlawful discrimination.
6. “Morals clauses” in employment and endorsement contracts may be violated by social media activities.
7. While a variety of background information may appear on social media, employers must exercise care not to utilize this information in an unlawfully discriminatory manner, as an invasion of privacy, or to unlawfully prevent protected “mutual aid and protection.”
8. There is a tension between employers controlling or investigating the social media activities of employees and engaging in unlawful restrictions or invasions of privacy.
9. Employers should consult an experienced attorney in developing and communicating a social media policy to employees, as well as before goggling applicants or otherwise reviewing social media activity.
Intellectual Property Protection
1. Realize that while intellectual property owners need to be vigilant in looking through social media for infringing behaviors, postings, etc., there are public relations and media relations issues surrounding the appropriate response. A blunt “cease and desist letter” in legalese may or may not be appropriate in a given situation.
2. Trade secrets and other valuable intellectual property may be revealed in careless social media postings. Once published, without adequate confidentiality safeguards, trade secrets may be lost.
Personal Injury Litigation
1. Social media provides evidence that may either confirm or dispute an asserted physical injury or emotional distress. Photos of physical activity and apparent happiness may undermine claims.
2. Evidence of stalking, invasion of privacy, and infliction of emotional distress may be provided by social media.
3. Sometimes professionals, such as police or health care providers, inappropriately distribute video of accidents or medical procedures, or are recorded mocking victims.
4. As an additional example, traffic accident litigation may be supported by social media content that demonstrates intoxication or reckless conduct.
1. Sales of securities are regulated by the Securities and Exchange Commission (SEC). “Crowdfunding” and related regulations involving the new media are being developed.
2. Prohibited trading on “insider information” may be facilitated through social media.
3. What constitutes permissible or impermissible individual and corporate speech in the securities market continues to unfold.
Settlement Agreements Containing Confidentiality Provisions
1. Social media postings concerning settled litigation may violate the confidentiality provisions of the settlement agreement, resulting in significant financial court sanctions.
This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney in specific situations.