Only a few years ago, the Court would not
have viewed Facebook posts as a reliable source of evidence. The reasoning
behind this was that a person could create a website resembling Facebook and
post false information to it that would alter the outcome of a case. Over the
years, we have become more aware of Facebook’s security measures as they have
developed. We have also cyber-based forensic methods that have seemingly
improved over time. Now in 2016, Facebook posts are seen as valuable sources of
information for attorneys and can be used as evidence in a case.
Take a moment to count the number of times
you have accessed Facebook today. How many posts did you make? How many posts
did you read? How personal were they? Some people feel very comfortable posting
personal information about themselves because of privacy controls used on the
Facebook website. While these security measures may keep some unwanted viewers
away from this information, it can still be used in a legal case. An attorney
does not have to contact a Facebook representative in order to access this
information. Evidence taken from Facebook is just that, evidence.
The same steps that are taken to present
any evidence in a case are applied to Facebook posts as well without many
adjustments. An article written by Michael J. Hutter in the New York law Journal
explores the steps that must be taken to have Facebook admitted into evidence
in a case. Mr. Hutter, a law professor at Albany Law School, emphasizes that
the Facebook evidence must be relevant and must be authentic.
First, it must be shown to the court that
the Facebook posts are relevant to the case. For example, if you claim you were
injured in an automobile accident such that you can no longer engage in
activities, but your Facebook posts shows you skydiving and riding mountain
bikes, the insurance company will consider such evidence relevant in that it
disputes your claim of injuries.
In order to become evidence, the
information has to be authenticated. In other words, it must be proven that the
Facebook profile owner made the post.
The use of Facebook as evidence has grown
over the past years. Whether the post or messages are made ‘private’ or not,
they may still appear in a court room.
We urge our clients to be very careful in
what they post on Facebook, particularly if they are anticipating litigation.
For example, if you know that you’re going
to be in a custody dispute involving your children with your ex-spouse or a
custody of litigation involving the other parent, it is absolutely
counterproductive to your case to have posted pictures on Facebook or other
social media showing you knocking back alcoholic beverages. Perhaps even more
devastating are the insults that separated parents post on Facebook when they
are directed at the other parent. Every judge that we have appeared before in
custody matters involving children have no patience for parents who send
negative comments or insults to the other parent via Facebook or other social
media.
Be mindful of what you post on Facebook or
other social media sites. Consider how that information that you’re sharing on
Facebook will affect you in the future. Certainly, never threaten or harass
other individuals online. Even if you delete the post or messages that are
offensive, they will be saved by another person and deleting posts or messages
does not mean that they have been eliminated as they can always be
reconstructed. This includes pictures and video posts.
For more information about the use of
Facebook-based evidence in a court proceeding, contact Poissant, Nichols, Grue,
and Vanier at:
367
West Main Street
45 Market Street
Malone,
New York 12953
Potsdam, New York 13676
Phone:
(518) 483-1440
Toll
Free: 1-800-924-3529
-Joseph
Nichols
-Paul
Nichols
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