Navigating A Series of Minefields

How many times have you seen a post on social media and thought: “Oh, he/she should not have posted that?”  Sometimes, it is simply embarrassing, either personally or professionally, but sometimes what you post on social media or the Internet can have serious legal ramifications.  

Hearsay you say?

Any statement made outside of the courtroom being used to prove the truth of the matter asserted is hearsay.  However, just because a statement is made outside of a courtroom does not mean that it cannot be considered by the court. n a libel suit, the statement itself is the basis for the litigation. Most people understand that posting something false about another on-line could lead to a claim of libel.  However, this can also occur in situations where people post malicious reviews about other businesses. Routine checks of online reviews should be part of any business today.

Social media posts are more likely to intersect with litigation when the individual makes a comment in contradiction to a claim in active litigation. This could be in the form of a picture, a comment, or even a “change of relationship status.” In these circumstances, the rules of hearsay and their exceptions come into play.  The court will first look to the individual making the comment: is it a litigant or a “friend or follower” of the litigant. If it is a party to the suit, they will move to see if the statement fits within one of the many exceptions to the hearsay rule.   

What’s The Exception?

The most common exception is when the statement is being used as impeachment.  The statement is not being used to prove the truth of the matter asserted, but rather to prove that the person making the statement is lying.  They either are “not telling the truth in the post” or “not telling the truth in court” without regard for the actual truth.  

Privacy Settings If You Please

The one protection people do have is their privacy settings.  The higher the privacy settings, the less likely an attorney will be able to find the statement.  Courts have held that an attorney gaining access to a litigant’s social media accounts by some devious nature (i.e. sending them a friend request), will bar that information from being admitted. It is always a good idea to check your privacy settings and make sure you are not posting information freely to the world at large.  However, from my personal experience, I have gained access to information which was shared by others that made the information public.

TLDR: Too Long Didn’t Read…

Bottom line:  Be mindful of what you post on social media feeds or in business reviews.  There can be a bevy of unintended consequences which could lead to litigation or impact current and ongoing litigation.