Social Media in Civil Law

Social media is ubiquitous—we are constantly uploading content and connecting with others through online platforms. Online content provides valuable evidence to all kinds of civil cases, including, but not limited to, divorce cases and accident cases. But obtaining that evidence often clashes with the legal right to privacy. While the issue of online evidence has begun to be addressed in several civil cases, the law must continue to adapt to accommodate confrontations between the right to privacy and the growing online domain.

In divorce cases, social media evidence can offer insight into various claims and conditions. The most common online evidence used in divorce cases are defamatory comments about a spouse, messages of infidelity, and location-based posts contradicting oral testimony. Social media evidence may also highlight character attributes in custody arrangements--a court could find, based on information found on social media sites, that one parent is unfit to be a child’s primary custodian. The possible conclusions drawn from social media are extensive, and are typically drawn from individual cases that rely on precedents involving relevance and privacy. In accident cases, social media evidence can verify or contradict case claims, and is most typically used to settle disability financial aid disputes.

Divorce law differs by state, and the handling of social media evidence differs as well. In New York, after the initial start of a divorce action and pleadings, a divorce case enters the discovery phase. Discovery refers to how each side obtains evidence they need to proceed with their case. The scope of evidence is governed by Article 45 of the New York Civil Practice Law and Rules (CPLR), which states that “no electronic communication shall lose its privileged character for the sole reason that it is communicated by electronic means.” [1] Article 45 of CPLR grants electronic evidence the opportunity for admissibility in New York courts, qualifying a whole slew of material on the web for parties to potentially use against each other in court.

Social media posts are generally admissible in court as long as they were not obtained illegally. According to the New York State Bar Committee on Professional Ethics [2], an attorney or spouse cannot create a fake profile solely to friend a client and access specific posts to use as evidence in court. A lawyer cannot ask a third party to friend a user with the purpose of gaining evidence [3]. However, public posts that can be viewed by anyone on the Internet may be used as evidence. If a social media follower were to share posts they can view with an ex-spouse, then that ex-spouse may use those posts as well. Privatizing an account may only go so far--evidence cannot be gathered deceitfully, but a spouse does not have to be following his or her opponent to get ahold of admissible evidence to further their case.

The constitutional right to privacy--provided by Griswold v. Connecticut (1965) and the Fourth Amendment’s protection against unreasonable searches and seizures--does not necessarily apply to actions online. [4]  Katz v. United States, a 1967 Supreme Court of the United States court case, determined that “what a person knowingly exposes to the public, even in his own home office, is not a subject of Fourth Amendment protection.” [5] The Fourth Amendment is often brought up in relation to criminal cases, but it is relevant in civil cases as well. In criminal cases, the Amendment refers to actual searches and seizures; in civil cases, these searches and seizures are figurative, and therefore “appropriate conduct” is a bit nebulous. [6] But these figurative searches must still be deemed reasonable. Citizens are entitled to the same Fourth Amendment rights whether they are accused of murder or faking their financial status. 

The consensus on social media evidence extraction comes from Trail v. Lesko, a 2012 Court of Common Pleas of Allegheny County, Pennsylvania case, where both parties requested access to each other’s Facebook accounts. The case developed from a motor-vehicle accident in which the plaintiff alleged to have been seriously injured. The defendant denied driving the vehicle. Both requests were denied because the desired Facebook information was deemed irrelevant. The court ruled that if there is “sufficient likelihood” that a social media account contains relevant information not otherwise available, then there is enough cause to access it. [7] Although not binding outside of Allegheny County, Trail v. Lesko was the first legal attempt to settle the issue of the discoverability of social media content. Discoverability refers to the ability of evidence to be discovered or found. Privacy claims cannot be reason to deny access to social media accounts; judges have consistently maintained that if a person voluntarily shares his or her information on social media, they cannot have a reasonable expectation of privacy. But that does not necessarily mean that the material may be obtained illegally or dubiously. 

There are certain federal Internet privacy measures judges and lawyers face when going after online evidence. Often times social media platforms will cite the Stored Communications Act (SCA) when subpoenaed to turn over data. The SCA was enacted as Title II of the Electronic Communications Privacy Act of 1986 and limits the government’s ability to compel Internet service providers to “disclose information in their possession about their customers and subscribers” [8]. But it has limited use—historically, the SCA has been overruled if the request is deemed relevant and does not overreach. Federal Internet privacy measures are typically not a tough barrier for state law, as they can be overruled as long as there is an identified piece of evidence with demonstrated relevance.

Deleting previous posts in anticipation of trial is called spoliation, the intentional or reckless destroying, tampering or withholding of evidence to a legal proceeding. Spoliation of social media evidence was first addressed in Lester v. Allied Concrete Co., a 2013 Circuit of the City of Charlottesville, Virginia court case. [9] A paralegal helped the plaintiff deactivate his Facebook page and delete sixteen pictures from his account. The images were recovered by forensics, and the court sanctioned the plaintiff and his counsel based on its conclusion they had participated in intentional spoliation of social media evidence. [10] In contrast, a 2011 United States District Court of New Jersey case, Katiroll Company, Inc. v. Kati Roll and Platters, Inc., imposed less severe punishments for the removal of Facebook posts. The court determined the defendant committed spoliation when he changed his Facebook profile picture, because the photos were relevant to the litigation. Instead of sanctions, the defendant was ordered to coordinate with the plaintiff’s counsel to change the picture back for a brief time. [11] The court reasoned that it was not clear to the defendant that changing his profile picture would constitute the destruction of evidence. Spoliation was determined unintentional, and consequences were minimal. 

There are several implications from civil cases dealing with incriminating social media content and privacy issues in obtaining content. Relevance and privacy are the two main thresholds for social media evidence in court. Relevance takes priority over privacy, as privacy online can be hard to define--just because something is “not public” does not make it private. [12] As social media platforms expand and develop different data protections, the law must clarify the legitimacy of these data protections and if relevancy will always prevail. Currently, privacy distinctions are murky; due to the rapidly growing nature of technology, establishing a more concrete definition of privacy online will clarify expectations of the online domain universally across the United States. [13]

There is no durable federal standard of privacy—for civil law, social media evidence discoverability and application develops on a case by case basis. Since different standards have been set in different states, this approach could cause complications for cases crossing state boundaries, as well as setting precedents. The subjective nature of the discoverability of social media evidence and privacy expectations leaves formal precedents tricky, especially as social media platforms develop and change their features and security settings. But the necessity for the legal world to accommodate these online advancements will not change, as we put more information on the Internet, often times without intending for the whole world to see. 

Since social media contains a wealth of data about ourselves useful in the courtroom, it is important that the law develop a consistent procedure to go about handling this type of evidence. As with other types of evidence, social media evidence must be preserved and is subject to discoverability if deemed relevant. But, as Internet privacy becomes more of a highlighted issue, the law must directly address the degree of legal protection that privacy mechanisms provide. The court system will continue to build precedents for social media procedure on a case-by-case basis, but as more and more cases involving social media evidence arise, clear and enforced federal boundaries would better handle this issue. 

[1] "New York Consolidated Laws, Civil Practice Law and Rules - CVP." Findlaw. Accessed July 21, 2019.!tid=N1BAE08E116C943029B9B98908555076D.

[2] N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. 843 (2010), available at http://

[3] Keeling, Robert; Weerasingha-Cote, Tami; Schnapper-Casteras, John P. “Neither Friend Nor Follower: Ethical Boundaries on the Lawyer’s Use of Social Media.” Cornell Journal of Law and Public Policy [Vol. 24:145] 

[4] "Fourth Amendment." Legal Information Institute. Accessed August 07, 2019.

[5] Katz v. United States, 389 U.S. 347 (1967)

[6] Dereuil, Louis J. "Applicability of the Fourth Amendment in Civil Cases." Duke Law Journal 1963, no. 3 (1963): 472. doi:10.2307/1371334.

[7] Trail v. Lesko, NO. GD-10-017249

[8] 18 U.S. Code Chapter 121 - STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS." Legal Information Institute. Accessed July 25, 2019.

[9] Lester v. Allied Concrete Co.

[10] DiBianca, Margaret. "Discovery and Preservation of Social Media Evidence." American Bar Association. Accessed August 07, 2019.

[11]Katiroll Company, Inc. v. Kati Roll and Platters, Inc.

[12] DiBianca, Margaret. "Discovery and Preservation of Social Media Evidence." American Bar Association. Accessed August 07, 2019.

[13] Ibid.