Andy Warhol said that in the future, everyone will be famous for 15 minutes. Facebook is exactly like that except you’re not really famous and your 15 minutes goes on forever.
The line between public and private behaviors is increasingly blurred by society’s insatiable appetite for social media. According to a recent Pew Research survey, social media usage by online adults in the United States rose an astounding 800% between 2005 and 2013 – with Facebook the dominant social networking platform. As of April 2015, Facebook reported more than 1.44 billion people actively utilizing its site each month. And this number continues to grow. A 2013 Pew Research survey found that half of all adult Facebook users have at least 200 “friends.”
In a 2010 study conducted by the American Academy of Matrimonial Lawyers, over 80% of divorce attorneys reported observing an increase in the number of cases utilizing social networking evidence. A 2011 survey conducted by Divorce Online, a UK-based legal services firm, found that the word “Facebook” enjoyed the dubious distinction of having appeared in more than a third of all divorce filings made that year. Evidence gleaned from social media is now a routine fixture in family law disputes. It has all but replaced the need for a traditional private investigator, as it often provides an open window into the indiscretions, private thoughts and credibility of both parties. Anything posted or tweeted or uploaded is potential evidence for the opposing side. And the internet has no magic eraser. Once an item appears online, it can remain in the ether for a very long time – whether on a caching server, archival service, search engine, third party re-post and even the Library of Congress (which archives all “Tweets”).
We highly recommend that clients consider a sabbatical or temporary leave of absence from their online social life. If a cold-turkey approach is not feasible, the following guidelines may assist in protecting your online persona from a future character assassination during settlement negotiations or in court.
- DO change your passwords.
- DO revisit your privacy settings so that friends and/or family cannot “tag” you in photos. Additionally, personally request that friends and family refrain from tagging you.
- DO consider “de-friending” mutual friends you share with your spouse/significant other/co-parent.
- DO a Google search of your name and review your social networking profiles at the beginning of your case. Share any concerning posts or information with your attorney before it blindsides you in Court.
- DO turn off geo-tagging and check-ins.
- DON’T delete any content from your social media accounts – no matter how negative or unflattering. Deletion may constitute “spoliation” of evidence and result in an adverse inference against you by the court or the imposition of monetary sanctions.
- DON’T post negative remarks about the other party and his/her family. (Repeat this to yourself daily, at least twice).
- DON’T post anything which you would not want a judge to see or which would be embarrassing to hear if read aloud in court. This includes embarrassing pictures or references to drug and alcohol use – no matter how benign you believe them to be.
- DON’T post updates or pictures of recent vacations, purchases or anything which might create the impression that you are financially better off than what you have disclosed on your Sworn Financial Statement.
- DON’T post about social activities conducted during normal working hours – especially if your ability to find employment is in question.
- DON’T post information about your case, including your reaction to court rulings or the judge. Most importantly, never start a post with “My attorney said …” as this may potentially waive your attorney-client privilege.
- DON’T create an online dating profile or post updates about your romantic relationship(s) until your divorce is final.