Early guidance on social media evidence risks can help preserve your client’s position and avoid costly mistakes that may affect their case. Here’s a refresher on the common mistakes attorneys should counsel clients to avoid.
TL;DR: Article Highlights
- The Myth of Deletion: Deleting posts after an investigation begins can lead to spoliation of evidence or obstruction charges, and digital footprints are almost always recoverable via subpoenas or screenshots.
- Third-Party Vulnerability: Even if a client stays silent, they can be compromised by friends’ tags, check-ins, or photos; counsel them to proactively ask their social network to keep them off-camera.
- Privacy is Not Protection: Privacy settings do not shield content from legal subpoenas, and “friends-only” posts offer a false sense of security in a world of screenshots and undercover monitoring.
- Counseling on Social Media Evidence Risks. Attorneys should include social media counseling in their client intake and case management procedures.
Prosecutors, opposing counsel and parties, and even law enforcement routinely monitor Facebook, Instagram, TikTok, X and other platforms for evidence.
In criminal matters, law enforcement and prosecutors routinely gather evidence from a target’s online activity and social media use. Clients may have posted pictures and videos — or worse, live broadcasts — while engaging in illicit or illegal activities. For clients with outstanding warrants, location tracking is often unnecessary when they voluntarily tag themselves and their locations, effectively providing their daily itinerary for investigators.
Social media evidence risk extends equally to civil, family court, child support and welfare matters. A client claiming they can’t pay child support faces significant credibility issues when the opposing party produces video evidence of that client vacationing in Barbados the previous weekend.
Common Mistakes to Avoid
Every post, like, comment and deletion can materially affect defamation lawsuits, personal injury claims and contract disputes.
What may seem like harmless content shared among friends can be taken out of context or used to impeach credibility. In criminal investigations, ostensibly harmless reposts and shares of memes or videos might be introduced to establish your client’s propensity toward certain activities, and their character and standards.
Early and direct guidance on social media evidence best practices can help clients avoid costly mistakes that may harm their case.
Deleting Posts: Why Backtracking Can Backfire
When clients learn they are under investigation or facing litigation, their instinct is often to delete anything that appears questionable. However, if they delete posts after they know or suspect an investigation, it can significantly damage your clients’ credibility. As their attorney, you should advise them of this. In criminal matters, such deletions may result in additional charges related to destruction of evidence or obstruction of justice and may be characterized as a tacit admission of guilt.
You should also counsel clients that deletion is often futile, as digital footprints rarely disappear. Opposing parties, law enforcement and prosecutors will subpoena every platform on which the client has posted, and deleted content can almost always be recovered. Moreover, you should assume that at least one of the client’s online connections has saved, made a screenshot or forwarded potentially damaging content to the opposing party.
The key point to push on clients: They should not unilaterally delete content without first consulting with counsel regarding best practices. In certain instances, such as defamation cases where the allegedly libelous content appears in a social media post, removal may be an appropriate strategy to mitigate damages, provided safeguards are in place to preserve the content for evidentiary purposes. In other circumstances, deleting or removing posts may draw additional attention to what is “missing” and suggest an acknowledgment of wrongdoing.
Posting About the Case: Just Say NO!
Discussing a case online, regardless of whether it involves criminal, civil or family matters, is one of the most damaging actions a client can take. Counsel clients that anything they say, do, share, post or even “like” can be used against them in court or tangentially to the court process. This applies equally to plaintiffs and defendants.
You’ll want to provide concrete examples to clients. A client who posts about a former spouse should expect cross-examination on that content during domestic proceedings. A client who broadcasts online after “winning” a divorce or custody matter could face a visit from child protective services and subsequent family court proceedings.
Emphasize to them that anything shared online may be admissible in court, even if written jokingly or under emotional stress. This includes reposting third-party content, sharing memes or liking another user’s content — all such conduct, and the content contained therein, are attributable to the client. The best approach? Advise clients to exercise the equivalent of their Miranda rights online by remaining “silent” on social media throughout the pendency of the matter.
Tagging and Being Tagged: Third-Party Evidence Risks
You also want to counsel the client that they cannot erase themselves from the internet if their friends and associates continue posting content that includes them. A probation violation can result from pictures of a client at a party obtained from a third-party contact. Similarly, a workers’ compensation fraud investigation may be triggered by a relative posting video of the client engaging in physical activities while purportedly disabled.
The recommended practice here: Make sure clients understand that social media evidence risks extend beyond their own profile; content posted by friends and associates can still implicate them. Advise them to proactively communicate to their social network that they should not be included in any photographs, comments, tags or other online content while their case is pending. Evidence can still affect a client’s case when provided by third parties, even if the client did not personally post the content.
Relying on Privacy Settings: A False Sense of Security
Many clients believe strict privacy settings protect them from scrutiny, but that is a dangerous misconception that you should dispel. First, most individuals have extensive networks of “friends,” many of whom they do not actually know personally, rendering “friends only” settings largely ineffective as a protective measure.
More importantly, no privacy setting protects against a subpoena. Social media companies can be compelled to produce private messages, deleted content and activity logs. Additionally, IP addresses and metadata create location trails that can place a client at a specific location at a specific time, regardless of their public assertions. As their attorney, you should instruct clients to treat every message, direct message, post and image as if it were public.
Client Counseling: Managing Social Media Evidence Risks
When clients are involved in ongoing litigation, their social media presence can become a powerful evidentiary tool for opposing parties. Deleting posts, discussing the case online, being tagged in content, and relying on privacy settings can all lead to adverse outcomes. One misstep online is effectively permanent. Since once evidence exists in the digital realm, it can be extremely difficult to remediate.
Failing to manage social media evidence risks can be just as damaging to a case as a courtroom confession. That’s why it’s wise to incorporate social media counseling into standard client intake and case management procedures.
More Social Media Advice From Attorney at Work Authors
Is Jury Research on Social Media an Ethics Risk or a Competency Requirement?
Can Lawyers and Judges Be Social Media Friends?
Image © iStockPhoto.com.
Sign up for Attorney at Work’s daily practice tips newsletter here and subscribe to our podcast, Attorney at Work Today.
