Your Clients May Still Not Understand Social Media Evidence

Smartphone with social media icons popping up
By Joseph Fawbush, Esq. on September 10, 2019 4:22 PM

A recent fact-check on Snopes revealed that many social media users are still unclear about the privacy such platforms afford. According to Snopes, a recent Snapchat post from “Team Snapchat” claimed that social media posts could “now be used as evidence” in court – unless you replied and stated your wish to opt out. Similar hoaxes have appeared on other platforms, most obnoxiously a post on Facebook that refuses to die, apparently written by someone who read an end-user license agreement once a few years before.

While this latest example involving Snapchat doesn’t appear to be particularly sophisticated or nefarious, the fact that Snopes felt it required an explanation does illustrate that social media users are still often in the dark about the privacy (or lack thereof) regarding the posts they put out for the world to see. And even less aware of how these posts are treated by law enforcement and the courts.

Of course, in some ways this is a good thing, as you may be able to find relevant public posts from opposing parties and witnesses with a quick search. But the fact that many of your clients are in the dark means you still need to treat social media for them as if they were U.S. Senators.

Talking to Clients About Social Media Posts

There’s more to communicate to clients than telling them to refrain from posting. Attorneys should have a process in place for explaining how to treat existing posts, avoiding new ones and investigating the opposing party’s posts ethically, when relevant.

The American Bar Association has issued 12 ethical rules for dealing with social media. These include:

  • You should tell your clients about the privacy settings on various social media platforms and how to make them as private as possible.
  • You cannot tell clients to destroy existing relevant posts, just like you can’t tell a client to destroy any other existing relevant evidence.
  • Relatedly, you must inform the client of the potential negative consequences if they do destroy existing evidence on social media.
  • You cannot contact or communicate with your clients through social media.
  • You cannot contact potential witnesses on social media through pretext.

Failing to follow these rules can leave you, and your clients, at risk. And if you tell your clients to “clean up” their social media without providing specific directions, in writing, “spoliation sanctions” won’t be such a fun phrase to say anymore.

Perhaps people should be aware of how social media posts can be used against them in court, but many are not. That’s why our knowledge must be up-to-date (what are Snapchat’s privacy settings, anyway?) and we must treat our clients like they didn’t just @ us on Insta.

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