Attention to detail can help attorneys establish timelines in social media litigation.
Last Updated March 2024
In the ever-evolving digital landscape, social media plays a pivotal role in shaping personal and corporate communication. Yet, this vast digital interaction space is not without its legal complexities. With a staggering 95% of young Americans aged between 13 and 17 engaging in social media platforms like Facebook, Instagram, TikTok, YouTube, and LinkedIn, according to the Department of Health and Human Services, the legal ramifications are both vast and intricate. This blog post unpacks various aspects of social media litigation, from privacy and data management concerns to copyright and defamation issues. It offers a comprehensive overview of how these digital platforms are intertwined with legal challenges and the implications for the practice of law, particularly in evidence gathering and litigation.
According to the Cambridge Dictionary, social media is an umbrella term used for apps and websites that facilitate interpersonal communication via digital devices. Familiar examples include Facebook, Instagram, TikTok, YouTube, and LinkedIn, all of which enable individuals and companies to publish and share content online. In the United States, social media platform use is common, particularly among young people; per the Department of Health and Human Services (HHS), 95% of individuals between 13 and 17 years old utilize at least one of these platforms. Laws related to social media address both civil and criminal aspects. Social media jurisprudence is a constantly changing arena, covering activity linked to networking websites and the content generated by the users of these sites.
Examples of the legal issues surrounding social media that may result in a legal claim include advertising law, defamation, and privacy. Privacy concerns may be caused by the data collection and management practices of the technology company or companies involved in running the platform; they can also arise in the context of peer activity among users, such as when one member of a social networking site posts a video or photo online without getting consent from those featured in the content. Sometimes, the content posted on social media sites might also infringe the intellectual property rights of an individual or entity. These latter cases are usually related to trademark or copyright issues and can sometimes lead to intellectual property litigation.
As important as these considerations may be, anxious discussions of the ubiquity of social media or the role it plays in day-to-day life often focus on the technical aspects of the media themselves at the expense of eliding the social dimensions of their use. While the digital technologies involved may be (relatively) new, the purposes for which Facebook, LinkedIn, TikTok, and other social networking sites and apps are used remain largely in continuity with the age-old functions –– and foibles –– of social interaction. In other words: Users of social media employ digital platforms to do old things in new ways.
For attorneys and other legal professionals, one of the most important implications of this continuity in communicative practice is that social media activity often constitutes a rich source of evidence. Because social media posts, comments, and other interactions create their own record, they are in many cases readily available for search, documentation, and analysis, in ways that (unrecorded) non-digital communications often are not.
The easily retrievable and (almost) infinitely reproducible properties of digital communications can, in some respects give these forms of evidence an edge over even printed or handwritten documents. When properly authenticated and prepared to ensure the admissibility in court, social media evidence may be used to establish a timeline of events, place an individual at a crime scene or show they could not have been at that location at the time in question, prove infidelity, document prior knowledge or premeditation, and more.
The timestamp for social media activity can be especially useful to attorneys looking to build a case, whether their aim is to exonerate a client or to show the progression of activities leading to a crime. However, social media evidence must be carefully vetted to ensure both accurate interpretation of the collected data and a clear chain of custody that will support authentication and help to show a court that the evidence entered should be deemed admissible. A demonstration of digital data collection tools from Page Vault may help attorneys explore some of the possibilities for documentation and authentication of social media evidence for litigation.
Some social media evidence will be readily available without the necessity of entering requests. Public posts, and the comments and “reactions” (likes, shares, and so on) made in response to them, are by definition viewable by anyone with an appropriate device. Other types of social media evidence require a different strategy.
For collection of social media evidence from public posts and comments, the main concern is often to collect as much data as possible, as quickly as possible, in case the user decides to delete their content or change its privacy settings. A variety of digital evidence collection tools can assist in this endeavor; some of them may be useful in authenticating the data collected, as well as in establishing a chain of custody.
Social media evidence collected from public content often generates urgency precisely because the content itself may be ephemeral, and access to it is contingent upon the user’s settings. Evidence of this kind also necessarily excludes a great deal of any account’s actual activity; even when the metadata on posted photos and videos are taken into account, publicly visible usage information will typically not include such details as IP address (especially if the user is posting via VPN) or device used. As a result, in many cases legal professionals will want to access significantly more information about a social media account and its history than is possible via a simple Google search.
The amount of information an attorney can obtain from a social media company directly is limited. Cornell Law School’s Legal Information Institute provides the text of the key legislation in this area: The United States’ Stored Communications Act, which prohibits companies who provide a “remote computing service” (such service being broadly defined) from releasing the stored contents of digital communications to any private party in response to subpoena.
Communication service providers like Meta Platforms, Inc. will typically release basic information regarding a social media account’s subscription history –– essentially, confirming the existence of an account and potentially identifying information linked to the account holder –– in response to a properly-directed subpoena or court order. The contents of communications and even stored records (e.g., photos and videos) uploaded but never sent are explicitly excluded from such responses. Disclosures to governmental entities are subject to warrants and court orders.
The bar for obtaining warrants, subpoenas, and court orders as a governmental entity being set high, and obviously not an option for attorneys in most circumstances, the Florida Bar Journal points out that in many cases account information such as settings, private messages, and other information not publicly displayed, may be obtained by means of the traditional written discovery process, in which counsel for either party may request printouts, screenshots, and other documentation of account contents. As the Florida Bar also explains, however, the best case scenario is one in which legal counsel is able to work directly with parties to obtain their account histories. The information Meta Platforms, Inc. is legally prohibited from supplying to private parties or to governmental entities under most circumstances is readily available to individual users at their own request.
In the simplest scenarios, an attorney may gain access to a set of social media records simply by asking. This situation may obtain, for instance, when an attorney is representing a client accused of infidelity in a divorce case. The client may choose to grant their attorney access to their social media account history in order to show that they conclusively rejected, rather than initiating or accepting, advances from a third party with whom they are accused of having an affair. Similarly, clients who face accusations of engaging in any of a variety of underhanded activities may share their direct message (DM) history with their legal counsel so that the attorney can use this record of communications in building their case.
A plaintiff alleging cyber harassment, on the other hand, may grant an attorney access to their account history to aid in documenting the pattern and progression of objectionable messages. In these instances, the attorney is unlikely to face serious difficulty in social media evidence collection for use in their arguments. They should be prepared, however, for opposing counsel or even the judge presiding over the case to ask what measures have been taken to ensure that the client has neither incorporated messages from pseudonymous, “sock-puppet” or “clone” accounts, nor deleted key posts or messages that might materially alter the construction of events.
Digital evidence collected through cooperation with individual users will often contain such detailed information as dates and times of recent logins, including data regarding IP address and the device and even the browser or software version used. Depending on the platform, account history may also include a record of the time spent in on-site or in-app activity for each log-in. These records can then be paired against the timing of posts made and comments left, as well as the timestamps of any DMs exchanged, in order to create a more complete view of the user’s social media activity when needed.
Below is a summary of other notable legal developments related to social media:
Users’ activity on these platforms shows both continuity with established practices and pitfalls in human communication, and an unprecedented rich self-documenting record of such communications, which with careful planning and appropriate methods for authentication may prove useful to legal professionals in a wide variety of practice areas. explore how Page Vault can aid legal professionals with their web capture requirements.
