According to its parent company, Meta, Instagram has over 2 billion active monthly users. Not only individuals, but over 200 million businesses globally have Instagram accounts. Pew Research states that over 70% of Americans between the ages of 18 and 29 use the platform, and finds that this generation is comfortable with sharing personal details and depictions of their lives on social media – including photos, interests, relationship statuses, videos, and much more. For many Americans, Instagram serves as a running record of their daily activities, providing a wealth of data to onlookers. Businesses rely on this user base for advertising by utilizing sponsored posts, engaging content, influencer partnerships, and Instagram Shopping features. For law firms, this data represents vital evidence that can alter outcomes of both civil and criminal cases.
Instagram allows users and businesses to post a variety of different content and message types:
Any of this content may contain information vital to legal cases. Law firms must be aware of all the various ways in which users can express themselves on the platform. Capturing only posts or messages may not be sufficient.
Instagram evidence may also contain a wide range of data. Some of this data might not be immediately obvious. Examples include:
Although Instagram evidence presents many possibilities for attorneys in the United States, using content from social media as evidence can also pose a number of challenges. Some of these include:
In the digital world, “ephemeral content” disappears from the web within a certain amount of time – usually 24 hours. Much of the content posted on Instagram is ephemeral in nature, and the short window of accessibility may pose issues for those attempting to capture and use this content as evidence. Here are a few examples of ephemeral content on Instagram:
Therefore, it’s very important for law firms to develop a proactive strategy for how they plan to collect and preserve this evidence – as it will most often be too late to get organized after the critical evidence is found online.
Instagram posts, like other forms of digital evidence, have been increasingly accepted in legal proceedings, contingent upon their ability to satisfy established evidentiary standards. The admissibility of Instagram posts in a court of law generally hinges on authentication, relevance, and the application of the hearsay rule. To be admitted, the party offering the Instagram post must be able to authenticate it, typically by demonstrating that the post is what it purports to be, which could involve verifying the account owner, the date of the post, or other identifying information. Additionally, the content of the post must be relevant to the case at hand, providing insight or information pertinent to the facts in dispute. However, like other forms of evidence, Instagram posts can be challenged on the basis of hearsay if they are offered for the truth of the matter asserted in the post, unless an exception to the hearsay rule applies. The court may also consider the potential for manipulation or alteration of digital evidence, necessitating the establishment of a reliable chain of custody and integrity of the evidence. As with any form of evidence, the specific rules and standards for the admissibility of Instagram posts can vary by jurisdiction, and it ultimately rests with the judge to determine their admissibility in a given case.
Surface-level data may not tell the whole story. Instagram users may tag a post with a specific location, but there is no guarantee that they actually visited the tagged location. Theoretically, users can post photos of themselves in the Empire State Building in New York while tagging the Eiffel Tower in Paris. Further examination of metadata may be necessary to verify the location of the post. The same basic logic applies to timestamps manually added to posts, as users may intentionally add clock “stickers” to their photos with inaccurate times. Often, they do this to mislead or deceive others. Again, careful metadata analysis may be necessary to ascertain the truth. Finally, users may also tag other people in photos despite the absence of these individuals, either as an act of deliberate deception or as a technique for signaling attribution for an idea or inviting participation in a discussion.
Since the appearance of Instagram, its content has proven instrumental in a wide range of legal cases. In some cases, it has led to the dismissal of criminal charges. In other cases, it has helped judges determine the guilt or negligence of defendants. Instagram messages may show that defendants were provoked into taking certain unlawful actions through trickery or manipulation. Instagram messages can even highlight evidence of entrapment by the authorities.
Instagram content can sometimes contain evidence of violent crimes and gun-related offenses. In some cases, witnesses record and post violent acts on Instagram. In other cases, the defendants record themselves discharging weapons. This has become especially common among young people. Attorneys may use Instagram evidence in a number of different ways for both civil and criminal cases, depending on the type of charges and extent of litigation involved.
Instagram evidence is seen widely across civil cases as well. It is a common platform for trademarks or copyrights to be infringed upon and for false claims to be posted, proving relevant for intellectual property cases. Additionally, it’s not uncommon for smoking gun evidence to be found in injury or employment cases, where photo or video evidence may go against claims made by one of the sides.
Instagram and other social media platforms have become increasingly important in intellectual property (IP) cases, serving as both a source of evidence and a field of enforcement. Common use cases for instagram serving as evidence and supporting enforcement in IP include:
The method in which law firms collect instagram evidence should take into account chain of custody issues, metadata collection, and overall efficiency. Attorneys can standardize and streamline this capturing process with modern, automated tools. Law firms may choose to outsource this capturing process altogether, or they may wish to use an in-browser solution at will. Innovative software solutions such as Page Vault, helps ensure the capturing of all relevant Instagram content quickly while minimizing chain-of-custody issues.
Many law firms and across the United States, including >60% of the Am Law 200, have already streamlined their capturing process with software tools like Page Vault. Instagram evidence has the power to alter the outcome of civil and criminal cases in many different ways, and it is worth exploring modern, reliable capturing options for best results.