05 Jul 2016

Ways Social Media Impacts Law

Social media, broadly defined, is having a powerful impact in the U.S. legal environment. Additionally, as social media crosses national boundaries, global legal concerns, not addressed in this brief comment, must be considered in practice. The following limited and incomplete points illustrate how one must exercise care in the social media legal world. Most individuals understand that what is communicated in the public domain is subject to research. Simultaneously, unthinking actions contradict this knowledge. There is no traditional “reasonable expectation of privacy” in publicly available information. Also, one must always assume that speech and actions are “on the record.” However, as is well known, social media information may be inaccurate and should never be blindly taken at face value.

In the interest of brevity, the following commentary only provides a minimal number of legal citations. In all areas, consult an experienced attorney.

Legal Risks in “Cleaning-Up” Social Media Profiles

The major legal issue, when litigation is anticipated or is occurring, involves the potential destruction of evidence. Altering privacy settings, deactivating accounts, and deleting content could all fall under unlawful destruction of evidence. This has both civil and criminal implications. “Spoilation of evidence” is the traditional legal phrase utilized in civil lawsuits. Bar Associations are developing ethical standards for attorneys to follow in advising clients concerning their existing social media content.

Introducing Social Media Information into Trial Evidence

Trial attorneys will likely investigate the social media information of potential trial jurors. This is considered ethical and diligent. Jurors, and potential jurors once jury selection begins, are restricted in their use of social media, email, and Internet searches during the trial and deliberations. Many decisions have been reversed based upon this juror misconduct. However, the legal system should make reasoned adjustments in recognition of the ease and reality of computer-mediated interactions and information.

The federal Stored Communications Act (SCA) (18 U.S.C. Secs. 2701-2712) broadly states that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” (18 U.S.C. Sec. 2702(a)(1). The main exceptions to the disclosure prohibition are law enforcement and governmental entities that have a good faith belief that an emergency situation exists. Typically a subpoena is served on the entity. However, most civil lawsuits are excluded. Nevertheless, when social media will contradict injury claims, privacy rights may be overruled by a court.

A litigant may simply conduct her or his own social media investigation or utilize formal legal discovery procedures. Of course, the party whose social information is requested may voluntarily authorize its release. Parties may stipulate that the offered evidence is accurate. Another approach is to assert that the postings are contemporaneous business records.

Introducing the contents of the social media into evidence requires that it be “authenticated.” While procedural rules vary somewhat from state-to-state, the following outline is typical. If the author’s testimony is unavailable, then another witness must testify that she or he knows the author in question, that the evidence offered accurately reflects what is presented on the social media site, and that some of the content would only be known by the author or poster. The standard for authentication is not especially high and relates to what a “reasonable” person would find acceptable.

The following twelve, of many, legal areas impacted by social media are listed alphabetically with very brief and incomplete examples or comments:

Advertising

1. Social media advertising is potentially subject to regulatory rules. The Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), among other agencies, have broad statutory authority. While few precisely targeted social media standards have been set, consult an experienced attorney before acting.

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