Social Media as Evidence

According to Nielson’s Q1 2019 Audience Report, the average internet user spends 2 hours and 23 minutes on social media every day. If you work in copyright, trademark and patent infringement, personal injury, employment, or family law, you’re likely already aware of the incredible volume of content that people freely share online. So what do you do if you need to preserve this content for a case?First, what is social media evidence?

The term “social media evidence” simply means any data housed within a social platform, like Facebook, LinkedIn or Twitter, that needs to be preserved to support litigation.

If you want to use that evidence in court, the guidelines in the Federal Rules of Evidence (also known as FRE) 901 will apply. FRE 901 requires authentication of digital evidence—meaning, you have to be able to show that the evidence you’re presenting did, in fact, exist on that website and in the way that you’re claiming it looked. This is to prevent parties from altering screenshots or falsifying evidence, which can easily be done with a simple screenshot or browser plug-in.

Where and what should you look for?

There are a number of social platforms that exist online. However, there are some popular ones that would be a great place to start your social media investigation.

• Facebook
• Twitter (X)
• Instagram
• YouTube
• LinkedIn
• Reddit
• Tumblr
• Vimeo
• Pinterest

Evidence can be found in many places on these social platforms. Comments, replies, and even videos and photo albums that people post can be used as admissible online evidence. Professional webpage capture tools make it simple to archive tweets or other social posts, print pictures and capture an entire scrolling screen of a social profile.

You found content to document, now what?

As soon as you find data to collect, you’ll want to capture it and store it in a secure place. Building a personal webpage archive with an organized naming convention is a best practice to follow.

But, ensuring admissible social media evidence is another thing you want to make sure you get right. Here are a few things to take into consideration:

• Appearance – accurately portraying what you see on the screen and printing a professional-looking hard copy is an important first step.
• Metadata – validating that the webpage existed online by documenting the timestamp, such as the URL, IP address, date and time, will only further strengthen your evidence.
• Digital chain of custody – removing yourself from the evidence can make your life easier in the long run. Having a trusted, third-party webpage capture tool do the work is ideal. And, the option to even further support your evidence with an affidavit is a big bonus!

By remembering these few tips, you’ll lessen the risk of your social media evidence being questioned or thrown out.