Social media is quickly becoming a very powerful evidentiary tool in litigation and is considered a primary source of evidence. Attorneys always conduct discovery of the opposing party’s social media, and look for any evidence that could dispel their legal claims or defenses. Yet, very few people consider the impact of their online postings on pending legal matters. If you’re involved in a legal matter, you must be mindful of your use of social media and consider implementing some changes during the pendency of your case. Here are 10 tips that will help you protect yourself and avoid common pitfalls that could complicate your legal case.
- Have a discussion with your attorney about your use of social media. And follow your attorney’s advice. Your attorney may recommend a different approach based on the particular facts or circumstances of your case.
- Do not discuss your legal case. This may seem like common sense, but unfortunately it happens far too often. This includes anything discussed in confidentiality with your attorney (which would waive the attorney-client privilege), but also anyone involved and anything related to the issues of your case.
- Talk with your family about their use of social media. Explain to them the importance of confidentiality and of not discussing your claims on social media. This may also require a discussion on changing your family’s use of social media during the pendency of your case. This will help you avoid a blunder such as the one that occurred in Patrick Snay v. Gulliver Schools, Inc, an employment discrimination case out of Florida. The plaintiff’s daughter posted on Facebook regarding the parties’ settlement, which resulted in the loss to the plaintiff of the entire settlement amount.
- Deactivate (suspend) your account. While this may perhaps seem like a drastic measure, it will help you resist the temptation of posting or commenting regarding matters that you might not even realize could have serious legal implications. It’s a temporary measure that could save you a lot of trouble. So shut it down until the dust settles.
- Restrict your privacy settings. Limit who can see the information on your page by changing the privacy settings on your account. You may also want to consider removing or blocking people who are not sympathetic to your situation, who make a habit of publically discussing private matters online, or who you think might share information with your spouse or employer. Remember that just because your account is set to “friends only” does not mean you are safe. One of your friends on Facebook or followers on Twitter or Instagram could access a post or picture and pass it along to someone who could use it against you in a pending legal matter.
- Change your password. This is always a good idea, even if you do not think your spouse knows your password, or you may have only checked your account once on your work computer. Get creative, and do not recycle an old password.
- Do not say negative things about the other party. If you are in a pending divorce or child custody case, you should not post any opinions or comments regarding your children or soon to be ex-spouse. Although they may be justified, do not make derogatory remarks, angry comments or negative rants about your spouse. Even if you do not make such postings, your friends might. Because of this, you also need to carefully monitor what they are posting on your page.
- Don’t accept friend requests from strangers.
- Be upfront with your attorney. If you’ve posted something on social media that could negatively impact your case, or know of potentially damaging information posted by someone else, please tell your attorney. The information will eventually come out and will need to be dealt with. The sooner your attorney knows, the sooner s/he can work out a strategy to minimize its impact.
- Think twice before you post an update, tweet, or comment on someone’s page. Is it something you would feel comfortable being published on the front page of a newspaper? If not, you probably should not post it on social media.
Taking these precautions and being smart about your use of social media will go a long way to prevent unnecessary complications down the road.
– Catherine Peterson