Are you among the 68% of U.S. adults who, according to the Pew Research Center, use Facebook? Social media can do more harm than good, especially if you are involved in a legal dispute, family-related or otherwise. Posts on Facebook, Instagram, or Twitter, and text messages, may affect child custody claims, property division, and other decisions made by a family court. Posts and photos may provide an evidentiary timeline of a party’s whereabouts, activities, and more.
Judges, however, cannot stop you from posting about your divorce case. In a domestic violence case, an order prohibiting a father from posting about the divorce case on Facebook unconstitutionally infringed on the father’s free speech rights. (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 833.) The Molinaro court considered that a restraint on freedom of speech must be necessary and narrowly tailored to promote certain interests, and in the domestic violence context, those interests were the best interests of the children in the divorce. (Ibid.) Because the father’s Facebook posts were not directed at the children, but rather invited comments from the father’s adult friends and extended family, the order was invalid, and was stricken from the domestic violence restraining order. (Id.)
While free speech is a right we all cherish, just because you have not been ordered not to post on Facebook, it does not mean you should. Your social media posts may still be used against you in court. Although Facebook and Instagram have privacy settings, they have a poor track record of protecting user privacy. In 2019, Facebook was fined $5 billion by the Federal Trade Commission for privacy violations. Even if Facebook were to make changes to implement better privacy protections, no amount of privacy protections will make your profile or posts privileged. California has liberal discovery laws, allowing discovery of most relevant, non-privileged information. A Court may order you to disclose even “private” Facebook and Instagram posts if they are relevant, unless you can demonstrate that the disclosure would unreasonably infringe on your privacy rights. Facebook and Instagram also may cooperate with requests from law enforcement and others seeking to obtain information.
Once obtained, authenticated social media profiles and posts may be used as evidence in the courtroom unless a valid objection precludes their admission. Social media evidence may be authenticated by laying a proper foundation.
Social media photos are considered writings (Evid. Code, § 250), which require authentication before they may be received in evidence. (Evid. Code, § 1401, subd. (a); People v. Goldsmith (2014) 59 Cal.4th 258, 266 [photographs from red-light camera used as evidence that defendant failed to stop at red light].) A photograph or video recording is typically authenticated by establishing that it is a fair and accurate representation of what is depicted. (Goldsmith, 59 Cal.4th at 267 – 268.) This foundation may be laid by the person who took the photograph or a person who witnessed the event. (Evid. Code, § 1400.) Authentication of a photograph may also be established by expert testimony, which may be useful if the only person with personal knowledge of the authenticity of the photograph is your party opponent. (See People v. Beckley (2010) 185 Cal.App.4th 509, 515 [expert may testify that photograph is not “faked” and does not contain manipulated images].)
Recently, a California appellate case, In re K.B., allowed Instagram photographs to be used against a party despite the party’s wishes. After In re K.B., authentication of social media evidence may be supplied by other witness testimony, circumstantial evidence, content, and location, which opens the floodgates to negating witness testimony.
For example, to admit Instagram photos into evidence, the testimony of the person who actually created and uploaded the image, or testimony from an expert witness that the image has not been altered, is not required. (In re K.B. (2015) 238 Cal.App.4th 989, 994-995.) Instead, to authenticate the photographs, the court need only conclude that evidence sufficiently establishes that the photographs were an accurate representation of what they purport to depict. (Id. at 997, citing People v. Goldsmith (2014) 59 Cal.4th 258, 267.)
In In re K.B., Instagram photographs obtained from a cellphone seized from a party were properly authenticated by the investigating officers, not the party. The investigating officer obtained the photographs from the party’s cellphone by taking screenshots of the photographs posted on Instagram. (In re K.B., 238 Cal.App.4th at 997 – 998.) The officer’s testimony included:
- The screenshot, which showed the time the photographs were taken and which directly connected the party to the crime. (Id.)
- Testimony about the nature of Instagram as a web-based photograph sharing platform through which users share user-generated content and can upload photographs and share those photographs with others. (Id. at 998.)
- Identification of the party’s username as “40glock_.” (Id.)
- Testimony that the officer had viewed the photographs of the party displaying firearms, and that those exact photographs were taken from the party’s cellphone. (Id.)
- Testimony that, at the time of arrest, the party was wearing the same clothes and was in the same location depicted in the photographs. (Id.)
This testimony was sufficient to establish the authenticity and genuineness of the photographs, even though the witness did not take the photographs, and despite the party’s objections. (Id.)
In a family law proceeding, your spouse could authenticate your own photographs and use them against you. Social media posts can be powerful evidence, for example, in a custody proceeding, posts of a parent drinking at a bar taken during that parent’s custodial time; or in a spousal support proceeding, photos of a spouse celebrating a job promotion bringing a sizable increase in salary.
The bottom line: think before you post.