Data from the Pew Research Center in Washington D.C. shows approximately 68% of Americans use Facebook. Other social media platforms including Snapchat, Instagram, and Twitter also have hundreds of millions of users. As usage is increasingly the norm, it is no surprise that such data is now sought as evidence in many cases such as claims of personal injury. Laws have allowed for admissibility of electronic information for over 30 years under the Electronic Communications Privacy Act (ECPA); however, the authenticity of such evidence remains to be heavily scrutinized prior to admittance.
Recent Pennsylvania Ruling
In Commonwealth v. Mangel, a criminal Superior Court appeals case, a panel of judges affirmed a lower court ruling to deny admitting Facebook evidence. Judge John Musmanno explained that the potential for creating false accounts exists and additional evidence is needed to confirm who authored the information. A detective from Erie County stated she could not find the defendant created the posts with a “scientific” degree of certainty. Courts across the county are developing varying admissibility standards.
Potentially Useful Data in Personal Injury Cases
Following an accident, someone injured may communicate details of the incident on social networks, which may relate to a party's physical or mental state. Key information describing the nature of an injury, or the way the injury is being treated could be communicated. There may be references to the pain someone is feeling, or photos showing their current ability to participate in activities potentially revealed. A defendant may attempt to show that the plaintiff's injury was not as severe as they claim, or their psychological trauma is being exaggerated.
Three Standards for Admissibility Used
Some of the standards that courts have created for determining what is authentic and should be admitted as evidence include:
- Reasonable juror standard: Requires social media data to be authenticated by the same rules as “hard-copy” evidence would; this requirement is that a reasonable juror would agree sufficient evidence shows the data is genuine.
- Reasonable juror-plus standard: This higher standard requires additional evidence to support the reasonable juror standard.
- Exclusionary fact standard: Requires proving that no other party could have possibly created the information. If doubt can be raised regarding who actually authored the evidence, the information would be inadmissible.
What Constitutes Authenticity?
Potential social media evidence is not able to be authenticated merely by a certificate from the platform (site). Proving that the data was created by the party is critical. Relevancy of the evidence is also of primary importance. In Martin v. Allstate Fire & Casualty Insurance, the court denied compelling Facebook account information because it could not be shown as being relative to the party's injuries and disability.
Subpoenaing Records from Internet Provider
There have been instances where social platforms or internet service providers have been subpoenaed for social media profile data or assistance with validation. Potentially viable information may include user IP address verification, validation of user's email address linked to the account, or if the account was verified using a mobile device the user owns, such via voice call or text message.
Parties have used the Stored Communications Act, a part of the ECPA, to defend against subpoenas for social media data. Generally, social media companies are reluctant to retrieve private content but may assist with verifying account ownership. In light of how social media data may influence a personal injury case, more attorneys are encouraging clients to refrain from sharing case-related information.