No invention or development in technology has affected the legal landscape quite like the internet and, more specifically, social media platforms like Facebook, Twitter, YouTube, and Instagram. Attorney Ralph Chapa says that the legal challenges and rulings surrounding social media are fascinating-and ever-evolving.
“Many people think that their social media posts, tweets, and chats are private,” says Chapa, who is an experienced litigator and former president of the Association of Defense Trial Counsel. “They believe it’s sufficient to have their Facebook settings locked down tightly so that only a limited number of trusted friends and family members can access the content they share. But what they fail to understand is that this content, even if it is as private as a direct message conversation, is discoverable in legal situations.”
Discovery, explains Ralph Chapa, is the pre-trial process that allows all parties involved in a lawsuit to obtain relevant information from the other party or parties. This includes documents, photographs, depositions or interviews with anyone involved, and, in recent decades, all content posted to social media sites, including content that has been deleted.
“It may seem surprising that courts can subpoena Facebook, for example, to recover deleted posts or even material that is password-protected,” says Ralph Chapa. That means individuals, companies, agencies, and all other entities that utilize social media need to be very cautious about what they post. Anything shared online has the potential to be recovered and used against them in a court of law.
Ralph Chapa offers some advice for using social media in a way that safeguards privacy.
Never share anything online that you would not want to be publicly disseminated. Most people understand that personal and financial information, such as Social Security numbers, bank account details, and home addresses should never be shared. But the same policy applies to anything that might be incriminating: complaints or potentially slanderous comments about an employer, photographic evidence of illegal activity such as drug use or the sale of illicit items, and the details of financial transactions like business deals or real estate agreements. If you would not want content to be seen by your HR rep, your grandmother, your children, or your neighbors and acquaintances, keep it off social platforms.
Businesses that use social media for marketing and advertising purposes should also exercise extreme caution when dealing with customers, clients, and anyone who has the potential to become a customer or client. Details of transactions, credit card information and the like should never be shared, even in a so-called “private message.”
“A seemingly innocent detail posted at the time of a transaction can appear incriminatory when viewed in the light of litigation months or years after the disputed event,” warns Ralph Chapa.
Navigating the social environment can be tricky, especially since people are increasingly turning to social to voice opinions, troubleshoot issues with companies or services, and contacting businesses to request information. The sites themselves facilitate such contact. Facebook, for example, now immediately opens a chat window when a user clicks on a company’s page and even suggests questions and inquiries that are commonly communicated.
Just as you would never write and mail a letter that included incriminating information or any content that might compromise your integrity, so too should you keep such content off your social media profiles. “Social media communication is similar to email and hard-copy letters, and thus will likely be analyzed under similar legal standards in the event of litigation,” cautions Ralph Chapa.
Go ahead and wish your former classmates a happy birthday, share those cute kitten videos, or solicit recommendations for reliable mechanics, but beware anything personal.
Ralph C. Chapa, partner, Kaufman, Payton & Chapa, is an aggressive, experienced litigator. His practice concentrates on insurance coverage and commercial litigation, as well as professional, premises, products and general liability.