When Social Media and the Law Collide

By: Ann S. Jacobs, President, Wisconsin Association for Justice

As a trial lawyer, my job is to fight for my clients both in court and outside. “Outside,” these days often means online as well. Hire me, or one of my colleagues, for our legal acumen and you’ll likely end up with a new Facebook friend.

My husband and I have had endless conversations with our teenage daughters about the perils of social media. “The Internet is forever,” is our mantra. Facebook just recently hit one billion users on a single day and that doesn’t even taken into account the dozens of other smaller, by comparison, social media websites. The kids, I suspect, get it.  Adults I’m not so sure.

You should care about your online life because it can come back to haunt you. If you’re involved in a lawsuit, brace yourself for the inevitable subpoena demanding to review your postings. In March, a court ordered a rape victim to turn over every photograph, status update, or message she ever posted. The woman had sued claiming she had lost the “enjoyment of life.” Defense lawyers claimed her postings showed her engaging in various activities, like rock climbing, telling a different story.

Ashley Madison, the now iconic cheater’s website, has been a good life lesson on the illusion of Internet security. Some 30 million wannabe’s signed up hoping for a guilt-free hookup and instead became part of a global snicker-fest when the website was hacked and the names were leaked to the media. Now, imagine if you’re on the list and your soon-to-be-former-spouse’s attorney decides to vacuum the rest of your online social life.

Defense lawyers are going to court hoping for even a hint of online doubt in a victim’s story.  I routinely ask potential clients if I can review their social media history for looming potholes in their story. If we do file suit, I tell clients to stop posting about the case online because the risks are simply too high.  A glib comment, an impromptu smile, or the mere mention of an activity can create a firestorm of litigation about whether your entire social media life should be handed over to opposing counsel.

Hail Mary subpoenas don’t always work, but enough do to be worrying. Instead of full access to a litigant’s social media life, defense lawyers are often being limited to only information that is relevant to a case which is also the gold standard for non-online evidence. Taking advantage of a victim a second time by inspecting every thought, emotion, or idea that was expressed online has nothing to do with justice.

That’s my point. Everyone one of us has to assume online privacy is more illusion than reality and recognize there are risks to sharing too much information. For every Ashley Madison story where potential cheaters get their comeuppance, there are even more examples of a victim being ordered to explain how one badly timed Facebook posting can call their credibility into doubt. As the frontline defenders of victim’s rights, it is up to our profession to hit the delicate balance between protecting our client’s legal rights and becoming their online hall monitor.


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