Admissibility of Online Evidence: It’s All in the Authentication

By Stephen Nazaran

Social media connects different cultures, and allows us to share photos and information with family and friends in real time. It also provides huge amounts of evidence potentially relevant to a variety of litigation matters, and courts are routinely asked to determine the admissibility of data preserved from various social media sites, including Facebook.

Admissibility Hinges on Authenticity

But in all cases, the evidence must be authenticated, and the authentication standard is the same for website data as it is for any other. Therefore, a simple screenshot may not be enough.

• In Commonwealth v. Banas, a Massachusetts Appellate Court ruled that a printout of a screenshot from Facebook submitted by the prosecution was inadmissible as evidence without any additional circumstantial evidence to prove its authenticity. In this situation, the testimony of the person who preserved the social media in combination with additional confirming evidence may have supported a finding that the documents were what the prosecution said they were.

Legally Speaking: “Private” and “Not Public” not Necessarily the Same

In the world of litigation, judges are increasingly allowing the discovery of Facebook content, even though it was set to be private. Although social media users continue to believe that their Facebook pages are private and should not be subject to discovery during litigation, courts consistently reject these arguments and generally find that “private” is not necessarily the same as “not public.”

When content is shared, even among a limited number of specially selected friends, the litigant has no reasonable expectation of privacy with respect to the shared content, according to an article published by the American Bar Association (ABA). In other words, the very purpose of social media, which is to share content with others, prevents the finding of a reasonable expectation that the content will remain “private,” and not subject to any privacy privilege. Consider this recent example:

• Nucci v. Target Corp. In this Florida case the plaintiff, Maria Nucci, was involved in a slip and fall inside a Target store. She consequently filed a lawsuit against Target claiming damages for person injuries and emotional distress, and Target’s attorney noted that her Facebook profile included 1,285 photographs, all set to “private.” Target requested production of the photos, Nucci denied the request and deleted 36 of the photos. Target then sought a court order directing the plaintiff to produce all Facebook photos from two years prior to the incident through the present day. Nucci appealed, but the court ruled that the relevance of her photos greatly outweighed her minimal privacy interest, and explained that photos posted on a social media site are neither privileged or protected by any right of privacy, regardless of the user’s privacy settings. After all, isn’t the point of posting photos on social media to share them with others?

So those involved in a pending lawsuit should think carefully before posting their next status update or revealing photo. If the posting can be authenticated, it just might be admissible.