In the past decade, social media has exploded from a college campus time-killer into a billion dollar industry. Check-ins, status updates, comments, and tweets are not just being used to tell friends and family what you’re up to on a given day. All of this data being generated by smartphone users is collected by companies and used to spot trends, interests, opportunities and needs. What a person puts out into the world via social media profiles says a lot about how they are and how they want to be perceived. Unsurprisingly, the ubiquity of social media has carved out an interesting question in the courtroom: Can it be used as evidence?
French newspaper Le Figaro reported earlier this month that an adulterous businessman in southern France is suing Uber for 45 million euros ($48 million) over his wife’s discovery of his extra-marital rides. The man had apparently borrowed his wife’s iPhone to request an Uber and, even though he signed out of the app, his wife’s phone continued to track his rides. In laying the blame squarely on Uber, the man claims that it was the accidental notifications sent to his wife’s phone that eventually tipped her off to his philandering ways and led to their divorce. In defending the suit, the lawyer for the unnamed entrepreneur, stated that his client was a victim of a bug in the Uber application, which caused him problems in his private life. A preliminary hearing on the matter is scheduled for March.
Today in the United States, divorces and infidelity investigations increasingly center around digital forensics, involving social media profiles as well as data gathered from wearable devices such as Fitbit or Apple Watch. Data gathered from devices and apps – check-ins, status updates, text messages and e-mails – can not only be submitted as evidence, they can be used to secure additional evidence. As a result, it’s a good idea to become familiar with the privacy settings on all of your devices.
As the case law on the admissibility of evidence taken from a person’s social media profiles is evolving, momentum is favoring admissibility provided that the exhibit is properly authenticated. As the line between our actual identities and our on-line personas becomes blurred, statements put out into the world via social media are becoming reliable indicators of a person’s interests, activities, relationships, prejudices, et cetera. Unsurprisingly, these postings are making their way into the courtroom. As the rules of evidence begin to account for where and how social media postings are treated as admissible pieces of evidence, parties to family-law matters should be vigilant about data they generate… knowingly or otherwise.