Corporate and personal use of social media has wide ranging legal implications, especially in litigation. This article examines how social media has been used as evidence in Court hearings and the ensuing challenges that lawyers have to grapple with.
Lawyers and Social Media: A New Evidentiary Landscape
Are you avoiding the Facebook-YouTube-Twitter hype and hoopla because you don’t understand how it works?
Here is a good reason why you need to get up to speed – quickly. The “social media revolution” is not going to go away any time soon. If Facebook were a country, it would be the third most populated in the world, approaching 600 million users. Twitter users post 140 million “tweets” per day. If you perceive that Facebook is only for Generation Y, then this statistic might make you sit up and take notice: in 2010, the fastest growing demographic of social media users were those over the age of 55!
Lawyers need to take a harder look at social media, how pervasive it has become, and how it is being used - if not by the legal profession, then by companies and individuals who are our clients. Corporate and personal use of social media has wide ranging legal implications especially in litigation. This emerging field offers lawyers an opportunity to develop specialist legal skills to meet a growing need.
Social Media As Evidence
The impact of social media on litigation cannot be ignored as postings on Facebook and other social media platforms are being increasingly produced as evidence in Court hearings.
As evidence, social media is a lot like e-mail made public. Nearly all social media is public in some way, making it an even easier way of collecting information and conducting investigations. Social media content has led to the uncovering of key evidence that may not otherwise be available offline. Racy photos and party updates posted to Facebook are undoubtedly a rich source of evidence in divorce proceedings (divorce lawyers in America have been known to refer to Facebook as an “evidentiary goldmine”) or used to expose employees who lied about sick days or obtained disability benefits.
Social media as evidence is not limited to cases of marital indiscretions in the Family Court. Litigants in the United States have been increasingly relying on evidence secured from social networking sites in high profile commercial, intellectual property, employment, products liability and personal-injury cases.
In TekSystems, Inc. v Hammernik et al,1 an IT services firm sued three former employees' and their new employer for violating non-solicitation and non-disclosure agreements on the evidence found in the employees' LinkedIn accounts used to make the wrongful contacts.
In Purvis v Commissioner of Social Security,2 the Commission of Social Security denied the plaintiff’s application for supplemental social security (disability) income on account of an asthma condition. An administrative law Judge supported the Commission’s denial by finding that Purvis’s symptoms were not credible after the Judge herself discovered Facebook photographs of the plaintiff smoking.
Activity on social media sites can even be used as an alibi, as in the case of Rodney Bradford,3 the Brooklyn teenager whose post on Facebook about late-night pancake cravings saved him from being charged for robbery.
Given the volume of content posted on social media websites every day, this is a veritable minefield of opportunity (evidence to support the initiation of a law suit) as well as pitfalls for the defendant in a legal action. Without a doubt one of the most significant implications of social media is how it has the potential to shape litigation strategy by introducing new sources of information.
As is often the case, technological innovation outpaced the law, and there has been a lack of guidance on the discoverability and use of social media content in civil litigation. However, in August last year, the Supreme Court of Singapore published a consultation paper on the Use and Impact of Social Media in Litigation4 (the “Consultation Paper”). In the opening paragraph of this paper, the Court acknowledged that with the increasing widespread use and reach of social media in Singapore and around the world, it is envisaged that social media will play a significant role in the civil litigation process.
The paper highlights ways that social media may be effectively used in civil litigation in Singapore; including the admissibility of social media evidence in the context of:
1. Discovery of data on social media against parties in the proceedings;
2. Discovery of data in social media against third parties; and
3. Preservation and inspection of evidence posted on social media.
Challenges of Social Media As Evidence
To the extent that social media content is like other forms of electronically stored information, the same legal standards regarding preservation, collection, review and production apply. However, social media content presents new and interesting challenges in discovery due to its unique properties:
1. “Possession, Custody and Control”
Under O 24 r 1 of the Rules of Court, the Court may order any party to a cause or matter to make and serve on any other party a list of documents “which are or have been in his possession, custody or power” if the documents relate to the matters in question. The meaning of “documents” is not limited to paper but includes information in electronic form, including e-mail, data in computers and by logical extension, internet content.5
However, a key consideration to determining a party’s obligations is whether the document is in his “possession, custody or control”. This determination is not quite so clear-cut in relation to social media because the content is created and stored on the social media website, not in our computers.
An argument that online content cannot be said to be in a party’s physical possession or custody was addressed by the Canadian High Court in Leduc v Roman6 when it held that online postings fall under the author’s control or power since the author can post or remove content at will. In short, the Canadian High Court found that postings on social media websites such as Facebook are capable of being discovered.
This issue has not arisen before the Singapore Courts yet but given the wide ambit of O 24, it is certainly arguable that a party to an action may be allowed discovery of content on social media websites if it is proved to the Court’s satisfaction that a party’s online postings are under his control or power and the content is relevant to the dispute.
2. Dynamic and Constantly Changing
How do you accurately produce a non-static, ever-changing website maintained by a third party?
It is virtually impossible to actually preserve social media in situ because the content is dynamic and at the whim of the account holder and the social media site. In most of the cases involving social media content as evidence before the American Courts today, the parties have resorted to “print-outs” of the web pages containing the material facts relied on.
If the account holder has not restricted access to their account, then information posted about their background, location, reputation, credibility and friends is freely available to the public. Thus, as soon as litigation seems likely, it is important to complete a thorough internet search for information related to the opposing party (and likely adverse witnesses) on social media websites. Once information is found, it should be preserved with a date-stamp, either by old-fashioned printing or captured electronically as an image. Simple desktop tools such as Adobe Acrobat can capture web pages and convert them to static PDF format.
3. Privacy Settings and Restricted Access
How do you access the information on a website that is private or semi-private?
If the information is not available publicly due to the account owner’s privacy settings, the only way to gain access to the Facebook or MySpace pages is to be accepted as a “friend” by the account owner. The ethics of posing as someone else or requesting a third party (whose name the account owner would not recognise) to “friend” the account owner in order to gain access to his Facebook postings was brought before the Philadelphia Bar Association in 2009,7 which concluded that lawyers may access another party’s social media site for potential evidence “as long as the party’s profile is available to all members in the network and the lawyer did not direct someone else to do so”. The Philadelphia Bar Association did determine that the attorney could attempt to “friend” the witness himself, using his real name, as that would not constitute “conduct involving dishonesty, fraud, deceit or misrepresentation” but to ask a third party to do so for the sole purpose of obtaining access to the account was unethical.
If an opposing party’s social media page is not available to the general public, then the most efficient way to secure evidence on it is through a discovery request.
Without an understanding of how Facebook (and other social networking sites) operate, you might not realise that you should request:
1. identification of any avatars/user names used by the party on social networking sites; and
2. all social-media postings and messages related to the lawsuit.
Just as you might write to a hospital to request release of medical records, you may also need the account holder to sign a “consent form” to authorise the social media sites to disclose postings and profile information on his page. While some sites such as LinkedIn have their own consent forms and will respect instructions issued on such forms, it is useful to know that since October 2010, Facebook account holders have enjoyed the ability to download everything they have ever posted on their Facebook account.
In a US case, Equal Employment Opportunity Commission v Simply Storage Management,8 the Court noted that discovery of social media simply “requires the application of basic discovery principles in a novel context” and rejected the claimant’s privacy arguments, noting that “a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.” In other words, even if content was posted exclusively for the benefit of selected Facebook friends, it is nevertheless fit for discovery in a lawsuit.
An even stronger statement on the admissibility of social media was issued by the New York state Court in the case of Romano v Steelcase Inc9 where the Court ordered a personal injury plaintiff to provide consent and authorisation for Facebook and MySpace to turn over access to her entire Facebook and MySpace account to the defendants, even though she used strict privacy settings. Citing Facebook’s and MySpace’s own policies, which warn users that they should have no expectation of privacy, the Court noted that “when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings”.
Why not order discovery against Facebook?
This point was considered in the Consultation Paper which concluded that while the Singapore Court has wide powers under O 24 r 6(2) (to order a non-party to the action to produce documents which are in his power, control or possession; and meet the criteria of relevance, necessity and sufficient identification), the Court does not have jurisdiction to order discovery by a non-party located outside Singapore.
As a matter of interest, even within the US, applications to subpoena Facebook have been routinely quashed on grounds they violated the Stored Communications Act (“SCA”), which has strict disclosure requirements for electronic data stored by third parties. The Court agreed and held that private-messaging functions on Facebook are no different than e-mail. The sites did not have to produce the messages; and in fact, they were prohibited from doing so.
4. Postings on Social Media Can be “Faked”
In Twitter, the use of parallel accounts, called a “parody account” by the twitterati, to bring disrepute to the original (authentic) account owner, is not uncommon. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content challenging. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, re-creating a post or a profile from a particular moment in time can be an uphill, if not impossible, task.
In discovery, not only should claimants identify relevant social media, counsel should also seek to discover the facts that will be necessary to introduce social media evidence at trial. Information may include avatars or nicknames used by a party which may mirror an online profile; the identity of users who have viewed or commented on social media content; and information relating to the inner workings of a social media site.
The evidential rules that apply to other forms of evidence similarly apply to social media evidence – the burden of authentication falls squarely on the proponent of the evidence. To satisfy the evidential requirement that a document is what its proponent says it is, authorship and timeliness of social media content must be confirmed.
Authorship may be established by testimony from the author or recipient, or other evidence which helps to confirm authorship, such as testimony that an individual’s commonly used nickname matches the name associated with the online profile which authored the content.
To establish authenticity of information gathered from social media sites and to ensure its admissibility as evidence, testimony from the person who obtains printed screenshots from the social networking web page should be documented, along with details of how and when the pages were accessed and printed.
Technology for Preserving Social Media Evidence
If documents on social media are discoverable, the obligation of litigants to preserve documents on social media will follow once litigation is reasonably contemplated.10 The consultation paper also envisages that the wide meaning of the word “document” under O 29 r 2 will cover data on social media websites to the effect that the Court has the power to make an order for the preservation of content posted on a social media website.
If relevant data exists, what is the best way to preserve it? Technology vendors offer a range of software programs to preserve and capture dynamic web pages, including social media sites. Nextpoint’s “Cloud Preservation”11 service creates an archive of websites, blogs, Facebook pages, Twitter accounts, and other online resources that are publicly available on the internet. Private or permission-based sites can be crawled if the site owner grants permission, which can be managed through an automated process in the setup page. You simply input the web address of the target websites and a robot retrieves content from the configured sources and stores it in a searchable online archive hosted by Nextpoint.
Website content archival software such as Nextpoint is not only useful to corporations required to preserve social media content in anticipation of litigation, it can also be used as an offensive tool for strategic collection/monitoring of content on an opponent’s social media. For example, social media websites are where you will find evidence to prove confusion in the marketplace caused by a competitor’s potential infringement on your client’s trademark. Such technology makes it easier to search for intellectual property infringement, or mentions in the media across the vast unchartered universe we call the internet.
Helping Corporations Navigate the Minefield
Even before the filing of a lawsuit, lawyers should be advising their clients that social media content may be discoverable. Companies should also be aware that simply because the technology is private or available only for internal use will not necessarily insulate the content from discovery. These issues may not be limited to company sponsored content, but could possibly extend to content posted by a company’s employee on the employee’s personal social media site. Now that plaintiffs are using social media content to bolster their claims, potential corporate defendants must re-evaluate their employees’ use of social media and consider the possibility that their own seemingly innocuous use of social media could open the door to litigation.
As corporate clients adopt social media as a marketing platform, they will expect the lawyers who advise them to understand how these social media websites operate and what new legal risks are created and how to avoid them. Company branded pages on Facebook, YouTube, and other social media sites generate a whole host of legal issues relating to the monitoring and removal of content, trademark and copyright infringement, and privacy and publicity rights and require care in drafting appropriate privacy policies and terms of service.
Even if your corporate clients are not using social media, their employees are. A post may seem as innocent as an employee expressing a personal opinion. However, if the person describes herself as working for a particular company, and then speaks on a highly controversial subject, her post could damage the goodwill of the company. To what extent should employees be allowed to use social media at work? How can you protect your corporate client from negative employee posts on Facebook, Twitter or blogs? How do you prevent trade secrets from getting out into the social networks? Employees easily fail to recognise a clear line between their private and professional lives; and may not fully understand the power and consequences of social media participation.
“Confidentiality of data” was the legal issue raised in the UK High Court case of Hays Specialist Recruitment Ltd v Mark Ions.12 If an employee is allowed to share contact details of clients on a social network, does the information lose the quality of confidence as soon as it has been made accessible to other contacts?
During his employment with Hays, the defendant set up a LinkedIn account, allegedly at Hay’s encouragement, and sent invitations to contacts from Hay’s database to join his network at LinkedIn. After the defendant left Hays to set up his own recruitment company, Hays took out a Court action against the defendant for “pre-action disclosure,” seeking information held on the networking site. The defendant’s argument that the contacts once uploaded to the social media site and the invitation to join his network was accepted by the contacts, had become public domain, hence ceased to be “confidential”, was rejected by the UK Court. Not only did the defendant have to disclose his LinkedIn business contacts, he also had to disclose all documents that showed any use by him of the LinkedIn contacts and any business obtained from them.
Corporations will need your help in drafting a social media policy to address employee use of social media and to educate employees about issues of maintaining corporate reputation and good will, and preservation of trade secret information.
► Sylvia Low
E-mail: [email protected]
*Litigation Edge is a provider of technology-driven litigation support services that encompasses document digitisation, electronic evidence management and e-discovery consultancy.
1 TekSystems, Inc. v Hammernik et al 2010 WL 1624258 (D. Minn. March 16, 2010).
2 Purvis v Commissioner of Social Security 09-5318 (SDW) (MCA) D.N.J. Feb. 23, 2011.
3 “Facebook Message Frees NYC Robbery Suspect”, MSNBC News Services, 11 Dec 2009.
4 Consultation Paper entitled “Use and Impact of Social Media in Litigation” by the Supreme Court of Singapore, August 2010.
5 Sanae Achar v Sci-Gen Ltd  SGHC 87 – April 2011.
6 Leduc v Roman 2009 CanLII 6838.
7 Philadelphia Bar Association – Professional Guidance Committee Opinion, 2009-02.
8 EEOC (Equal Employment Opportunity Commission) v Simply Storage Management, Case No. 1:09-cv-1223-WTL-DML.
9 Romano v Steelcase Inc 907 N.Y.S.2d 650 (Sept. 21, 2010).
10 K Solutions Pte Ltd v National University of Singapore  4 SLR(R) 254.
11 Jason Krause ,“Nextpoint Preserves Websites and Social Media for the Record”, Law Technology News, June 2011 – www.law.com.12 Hays Specialist Recruitment (Holdings) Ltd. v Ions (2008) EWHC 745 (Ch).