Social Media and Privacy
When social media platforms such as Facebook, Twitter, and Instagram grew into major tech powerhouses, many internet enthusiasts saw them as models that proved the world-changing potential of the internet by connecting people around the world on an unprecedented scale. However, while it has certainly made the world smaller in more or less a good way, some think society pays the price for social media in concessions of personal privacy.
As the social media craze swept the world at breakneck speed, average people arguably haven’t had the time to adapt their behaviors and perspectives to the unique limitations of communicating online. Many people treat online communication the same way they would through mail or telephone.
In general, a person has a reasonable expectation of privacy regarding the communications they transmit through phone or mail. However, that same expectation of privacy does not necessarily apply to internet communications—especially social media postings.
It is not uncommon to see people publish what others would consider private material and content through social media—and that is the keyword: publish. At its core, social media is a public space where people frequently interact with a broad audience.
When it comes to social media, privacy is not the rule—it is the exception. Otherwise, messages on social media wouldn’t have to be qualified as “private” or “direct” to distinguish them from standard communications.
Despite whether you think social media blurs or erodes the private sphere, one thing is for sure: its lack of privacy makes social media a goldmine for evidence in divorce cases.
Illinois Rules of Evidence
Though this may surprise you, it is possible to use social media postings, comments, interactions, and even metadata gathered from social media postings. In Illinois, evidence rules are guided by the Illinois Rules of Evidence. According to these Rules, all evidence that is determined relevant is admissible. Therefore, before social media content can be used in a case, it must be deemed relevant. The Rules define relevance as "having any tendency to make the existence of any fact this of consequence to the determination of the action more probable or less probable than it would be without the evidence."
However, though technically admissible, some evidence may be excluded if its relevancy is outweighed by its potential to confuse the issues, mislead the jury, or causes unfair prejudice. It may also be excluded if it is likely to result in undue delays, be a waste of time, or contribute to a presentation of needless cumulative evidence.
These laws surrounding evidence are important to remember if you plan to use social media as evidence in your case. Just because you believe it to be relevant does not necessarily mean that the courts will deem it useful. Always consult with your attorney on the matter first.
What is Discovery?
When working on your case, your lawyers (and the opposing party's counsel) will go through a fact-finding process before the trial. The discovery process is when both sides must disclose facts and documents that are material to the case. When someone and their legal counsel believe that the opposing party's social media activity or profiles are material to the case, they will send a letter to the other side regarding the preservation of evidence.
Suppose you have been sent a letter of preservation of evidence for your social media accounts. In that case, you mustn't delete any posts or other content without first speaking with your lawyer. As social media has become commonplace for most of the population, the courts have been known to hand down sanctions when evidence is deleted or damaged. Social media evidence should be treated as seriously any other type of evidence.
During discovery, you and your attorney will have to consider what aspects of the opposing party's social media activity you want to request. It is not always a good strategy to request the entirety of someone's social media content. Instead, you want to carefully solicit what will be most relevant and pertinent to your case.
Keep reading to learn about how social media can affect the most common family court matters.
In a divorce case, issues concerning the custody of minor children are determined by considering the child’s best interests. Among the factors courts must consider when resolving custody disputes is whether a parent can provide their child with a safe and stable environment. As a result, a parent’s lifestyle choices are often very relevant to child custody determinations.
Social media tends to give people the courage to expose aspects of their lives and personalities they wouldn’t otherwise show in public, especially if they are surrounded by like-minded individuals. For example, proponents of legal marijuana use might feel secure about posting pictures of themselves using marijuana. However, a former spouse can easily access those pictures and print them as exhibits for a custody hearing, arguing that their drug use presents a danger to their minor child.
Another factor regarding child custody involves a parent’s ability and willingness to promote a close relationship between their child and the other parent. Social media can provide someone with a social network that is crucial for coping with the hardships of divorce. However, a person should be careful about venting about their divorce on social media. Posts that trash-talk the other parent can be used against someone in court to demonstrate their antipathy towards the other party, and their unwillingness to preserve the important bond between their child and the other parent.
Illinois courts are authorized to issue temporary protective orders enjoining someone from contacting their spouse, child, or other household member if doing so would prevent the occurrence of domestic violence. Domestic violence does not necessarily have to involve physical attacks. The threat of violence and verbal harassment may serve as a sufficient basis for issuing domestic violence protection orders.
Evidence of harassment and threats can be pulled off of social media interactions. Such evidence isn’t limited to standard public postings. “Private” or “direct” messages from an attacker can be collected from the victim’s end and used against the attacker in court.
The usefulness of evidence gathered from the internet goes beyond what people can see at face value. Digital photos, videos, and messages all have hidden data that can be even more useful than its content. For example, when you post a photo online, not only can a lawyer find an easy way to legally access the image data, but they can also access what’s known as the file’s “metadata.”
Metadata contains information about who posted an image, when it was posted, and where it was posted. This data can be used in court to show that a parent was out partying when they said they were at home watching their child. Metadata can also help someone discover hidden assets that were undisclosed during divorce proceedings.
Social Media Best Practices
Remember that in many ways, privacy on social media is a myth. Even if your account is not public, this does not mean that your friends or follows cannot and will not share content with people. It is also not unheard of for people to share private messages with others or make private posts public. When posting, a good rule of thumb is to ask yourself if you're okay with the information being made public or shared. If you are not, do not post it.
Many people treat social media like a diary or a journal, often posting the minutiae of their day. It is also common for people to vent on social media. For example, if you had a bad experience at a restaurant, you may make a status update complaining about the terrible service. These types of social media posts can pose a serious problem when going through a legal dispute with a former spouse or your parent's other child.
Posts venting about the opposing party or in which you badmouth the other person involved can be used against you in court. You should not make negative comments about the other person and never post in anger. You must also refrain from commenting on your case on social media at all.
In general, if you are on social media, your best bet is to remain careful and cautious when posting. You also never want to completely delete or clear your social media profiles in anticipation of your case, as this can lead to a charge of spoliation of evidence. If you are uncertain about your social media accounts and how they will affect your family court case, reach out to an experienced lawyer for guidance, like ours at the Law Offices of Jonathan Merel, P.C.