Today, most Americans use some form of social media (whether it is Facebook, Twitter, LinkedIn, Instagram ect). This trend is definitely growing. According to the Pew Research Center, in 2011, approximately half of all Americans used social media sites. Now, only a few years later, that number has increased to approximately 69%. In 2016, 86% of Americans ages 18-29 used social media; 80% of Americans ages 30-49 used social media; and 64% of Americans ages 50-64 used social media.
In law, we rely on evidence. Evidence can be anything from a record to testimony to pictures. In order to use evidence in a legal proceeding, the evidence has to be relevant. Evidence is relevant if it is “probative and material.” Probative means it has anytendency to make something more or less probable. Material means it is a fact of consequence in determining the action. So if it meets this criteria, the evidence is admissible to be used in Court (with a few exceptions, like if it violates the constitution or a statue or some other rule).
As more and more people are posting about their lives on social media, there is a high probability that others can acquire information from social media regarding your life that can affect your case. Lets take the example of an individual who has a back injury as a result of an accident. One of the claims is that the individual can no longer engage in the same activities post-accident that he or she did pre-accident. The person can no longer work out, go on runs or walk the dog. The other side can find information regarding this person’s day to day activities on social media. Pictures of the individual hiking forested paths, comments regarding surfing in Hawaii or check-ins at local gyms are highly relevant since this type of evidence has a tendency to make a fact more probable (the person is not actually hurt that bad). These facts are of consequence to the ultimate resolution of the case.
Wait, but what about this person’s expectation of privacy? Isn’t it a violation of privacy for the other side to search through my social media sites? Well, that information stopped being private once it was posted online. This individual lost any reasonable expectation of privacy in the information that it discloses to other (even if they are social media friends). There is no expectation of privacy in posts which can be seen by the general public or by “friends.”
Of course, it is very important to note, that someone cannot hack into your social media account in order to access information and the other side cannot create a fake account to “friend request” you and then see all your social media activity. It is also equally important to note that even though the information posted is available, it does NOT mean that it is ALWAYS relevant to the matter at hand. If the information is not relevant, it has no place in the courtroom. As the court in Giachettoappropriately stated “the fact that the information [Defendant] seeks is in an electronic file as opposed to a file cabinet does not give [Defendant] the right to rummage through the entire file.” Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116 (E.D.N.Y 2013).
So, due to this lack of privacy and due to the fact that social media sites can be used in Court, it would be wise to limit (or censor) what is posted online. If you are involved in a case, or are about to be involved in a case, it may be better to take a break from social media.