Social Media: The Courts Are Watching

Social media’s domination of society is having an effect on the court system as well and experts are now starting to quantify its impact on the legal system and how attorneys will use it to benefit their clients in both criminal and civil law.

Family law is no different as our Ayo & Iken attorneys will tell you those social media posts you throw up on Facebook, Instagram, or the like, are increasingly being seen in court.

Social media and its use in court is also on the radar of the Florida Bar as evidenced by an article written for the April journal edition by Bronwyn Miller, a circuit judge in Florida’s 11^th Circuit, and Coral Gables commercial litigator Brian Barakat. In their Florida Bar Journal piece A Prolific Landscape: The Admissibility of Social Media, the pair quantify the scope of use of social media:

“As of the third quarter of 2017, 2.07 billion people actively used the social networking site

Facebook on a monthly basis. Instagram, the mainly mobile photo-sharing network, serves

800 million active monthly users. Snapchat users view more than 10 billion videos on the mobile application every day. Statista reports that WhatsApp, a smartphone messaging app, has more than one billion monthly active users.”

Those astounding figures led to their reasoning that case law will continue to build as admissibility issues are addressed by judges. The article also makes the point that while people sometimes try to erase posts they can often still be found.

“Although some digital evidence is self-destructing because of the nature of the technology employed, innovative forensic investigators are able to recover seemingly transient data for use in later court proceedings,” Miller and Barakat wrote.

The writers’ conclusion is one that should be noted: However caselaw shakes out on how to handle social media, it is coming to the courtroom in big way:

“The widespread, nearly universal, use of social media platforms dictates that data mined from social media postings will be imperative to proof in a growing number of civil and criminal cases. Thus, familiarity with evidentiary standards governing the admission of electronic evidence is of paramount concern in the practice of law. Although the admission of digital evidence was not contemplated at the time many evidentiary requirements were drafted, evolving case law recognizes that traditional predicates may be well-utilized to support the admission of such evidence. Thus, as the bench, bar, and legislature work toward implementing evidentiary requirements narrowly tailored to address rapidly changing technology, the prudent legal practitioner will draw upon traditional predicates to support the admission of electronic evidence.”

Ayo & Iken Attorney Claudia Blackwell is already one of those “prudent” legal practitioners using social media in her cases. She is not surprised by the statistics concerning social media use and stresses that its use can be an asset to an attorney in a family law case, or a detriment to a person who is using social media in a way the court may frown upon.

“It seems that almost everyone is somewhat involved in social media. So it becomes very important when you are going through litigation in family law because things people post can be used against them in a trial. I can say firsthand that have done that. I have used posts on social media when someone is clearly intoxicated or using illegal drugs while they are supposed to be caring for a child. Especially when children are involved, I do it because it shows someone is not caring for their child properly. So it’s a very effective tactic on my part when I introduce it into evidence. People just do not realize these things can be used against them.”

In the past, judges have been skeptical about allowing social media in as evidence in family law cases, but that is changing, Ayo & Iken Attorney Beth Clause said.

“It’s coming to the forefront. We are going to have to start using it especially if it’s in the sense of proving things such as alienation of the children or use of marital assets,” Clause said.

Clause added she believes two areas concerning social media will be coming to the forefront. First, authenticating who is posting what will be key. For example, she has a case where it is believed her client’s opposition has set up a dummy account where the wife is posting disparaging messages about her client, the husband, that his son is seeing.

That takes matters to the second area of concern Clause is seeing: the use of social media to attack the other side with commentary about parenting skills, substance abuse problems, child support, etc. Some people are even discussing their children on social media.

“I just had a client recently ask if there is any way she can get some type of injunction where the husband can’t talk about the children on Facebook,” Clause said. “I think judges are going to have to get more accepting of considering these things because it is just going on too much. When it comes to adults that is one thing, but when it comes to children who are seeing this stuff, that is not right.”

Use of social media may not be all bad if you are in the midst of family law litigation, argues Ayo & Iken Attorney Jeana Vogel. Yes, she said the partying pictures while you are supposed to be caring for your child can hurt you. But on the other side of the coin, if you are active on social media because its part of the everyday fabric of how you live, it can show a consistent lifestyle of caring for your children with postings such as school activities or fun family days.

“When you have children, “family” should be your lifestyle and the courts want to see that,” she said.

Vogel offers one last final note when it comes to social media and your case:

“Even if you delete something, once on the Internet, always on the Internet. We can likely find it,” Vogel said.