Six Best Practices for Capturing Social Media for Use as Evidence in a Court of Law

“Can social media be used as acceptable evidence in court?” Yes, both public and private social media content can be admissible in court proceedings, regardless of whether you are a legal practitioner seeking information about Facebook posts and comments, Instagram photos, Twitter tweets, or YouTube videos.

Some sites specialize in assisting legal professionals with the capture and preservation of digital content, including web pages, websites, social media, videos, and photographs. It is essential to keep in mind that there are excellent practices to follow when gathering social media information that increases the admissibility of a web capture.

Here are our top six recommendations for legal professionals:

Best Practice 1: Capture Content in Full

Include all aspects of a social network profile, such as the About, Groups, and Friends pages on Facebook. In addition to capturing all sections, capture all posts and comments (including scrolling, expanding, and archiving information) inside a profile to not only document it in case it is removed but also to offer the whole context of the posts and dialogues.

Numerous examples, such as IL v. Lorenzo Kent, illustrate why it is essential to collect a whole Facebook page and not just fragments.

Best Practice 2: Know the Hiding Spots

Numerous tabs and expanding comments on social media sites include material that may not be immediately obvious. Due to the dynamic nature of these platforms, you must be aware of or consult an expert about where evidence may be concealed inside each platform.

In a recent rape trial in England, for instance, police enforcement was unfamiliar with Facebook and failed to gather discussions that would have shown the innocence of the defendant prior to his unjust conviction.

Best Practice 3: Gather Essential Metadata

Capture all metadata pertaining to the content to demonstrate its legitimacy (IP addresses, timestamps, URLs, etc.). Even if you don’t believe you’ll need it, you should always gather it from the beginning.

Best Practice 4: Stay Out of the Chain of Custody

Utilize online gathering technology that eliminates attorneys and their personnel from the chain of custody. You may become excessively entangled in a case if you or your staff handle the collection personally.

Best Practice 5: Support Your Evidence with Affidavits

Obtain an affidavit to authenticate the online capture technology and capture process.

Best Practice 6: Document Content Accurately

Capture a real and accurate version of the web content so that when it is saved or printed, it appears precisely as it does online and will not cause confusion if presented in court.

If a legal practitioner is unable to adhere to these best practices, it is preferable to engage with a legal-specific online collection service that can help gather the required web content during discovery or litigation.

Additional Information Regarding Acceptable Social Media Evidence:

  • Rule 902(13) and (14) were added to the Federal Rules of Evidence (FRE) in 2017 to accommodate electronic data and authentication, as well as web evidence. Prior to these modifications, a lawyer would have needed a sworn expert to attest to the veracity of web-based evidence. Now, a certification from a trained specialist in the e-Discovery collection may confirm the validity. Read other online evidence-collecting regulations.
  • When searching on social networking networks and gathering information to be utilized as evidence, an attorney has ethical obligations. For example, it is unethical to attempt to access private material or a private Facebook account dishonestly (such as by “friending” someone to obtain access to non-public stuff) or to counsel a client to alter their social media content in order to tamper with evidence. In counseling clients, attorneys may face ethical concerns if they are not up-to-date on the most recent technological platforms. Read more about the ethics of social media.

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