When Can Your Social Media Profile Be Admissible as Evidence
With the recent explosion of public use of social media, Courts around the country are divided as to whether the user's content can be used as evidence despite privacy controls.
The Narrow Approach to Admitting Social MediaSo how does a court decide whether or not to admit social media profiles as evidence? Relevancy is typically the key factor a judge uses to determine whether a user's social media account can be used as evidence. As such, several courts have held that the critical factor in determining relevance of a person's private account is whether the public portion of the user's site contains relevant information. See Abrams v. Pecile 83 A.D.3d 527 (NY, App. Div. 2011); see also Mcann v. Harleysville Ins. Co. of New York, 78 A.D. 3d 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)
Direct Access- The Broad ApproachWhite the majority of Courts rely on publicly available social media profile content, other Courts have required that a party disclose their log-in information to the opposing party for the purpose of investigating the party's account. See Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Franklin Cnty. C.P. Nov. 8, 2011). While this method of discovery is often scrutinized for being the most intrusive, as well as the least likely to reveal relevant evidence, there remains a possibility that the Court may order a party to reveal this information nonetheless. However, restrictions on who may access the profile and a time-limit on access have been included in said decisions by the Court.
Obtaining Social Media Account Access through the Provider.... Good LuckAnother method of obtaining access to a party's social media account is by issuing a subpoena to the social media service itself. However, this method is rarely effective. Social media providers such as Instagram, Facebook, Twitter, etc... are massive corporations whose interest lies in protecting the privacy of their users, as well as substantial resources available to fight said subpoena. This method is the least likely of all to generate useful information about a party through their social media account.
Why not just ask the other party?Like most legal issues, agreements or stipulations between the parties are the most effective way of achieving a desired goal. Accessing social media profiles is no different. More often than not, parties will be more accepting of the disclosure of their social media profiles if the request is narrow in scope and specifically address the information or content sought. This is by far the path of least resistance, and allows the parties to avoid a potential ruling against the discovery of such evidence. You should also note that the social media provider itself will typically require that they be indemnified from any liability that may result in the disclosure of the information.