ABSTRACT

Social media has revolutionized the way people communicate and interact in the
digital age. With its widespread adoption, social media platforms have become a
significant source of potential evidence in legal proceedings. This article explores
the impact of social media on the law of evidence and examines the challenges and
opportunities it presents for legal practitioners.

The exponential growth of social media usage has expanded the scope of electronic
evidence available in litigation. Social media content, including posts, messages,
photos, videos, and comments, can serve as crucial evidence in various legal cases,
from civil disputes to criminal investigations. However, the authentication of social
media evidence poses a significant challenge, as it can be easily manipulated,
fabricated, or deleted.

Moreover, the use of social media evidence raises privacy concerns, as courts must
balance the need for relevant evidence with the protection of individuals’ privacy
rights. Admitting social media evidence often involves navigating the hearsay rule,
which can be complex due to the nature of out-of-court statements prevalent on
these platforms.

The preservation of social media evidence is essential to avoid spoliation and

ensure the integrity of data. Legal professionals must educate their clients about the
duty to preserve social media content once litigation is anticipated or initiated.

Social media investigations have become an integral part of the pre-trial process,
enabling lawyers to gather information about opposing parties, witnesses, or
jurors. However, ethical considerations and adherence to rules of professional
conduct are vital to maintaining the integrity of such investigations.

KEYWORDS
Admissibility, Authentication, Privacy, Hearsay, Influence, Spoliation, Expert
testimony, Juror conduct, Cross-bordered challenges.
INTRODUCTION
The advent of social media has ushered in an era of unprecedented connectivity
and digital interaction, fundamentally transforming the way people communicate
and share information. With billions of users across various platforms, social media
has become an integral part of modern society, influencing virtually every aspect of
human life, including the legal landscape.

In recent years, social media’s impact on the law of evidence has emerged as a
compelling and complex topic of discussion within the legal community. The vast
amounts of data generated daily on these platforms offer a treasure trove of
potential evidence in legal proceedings, ranging from civil litigation to criminal
trials. Lawyers, judges, and legal scholars now grapple with the challenges and
opportunities presented by this rapidly evolving digital realm.

This article delves into the profound impact of social media on the law of evidence,
exploring how this technological phenomenon has reshaped the collection,
presentation, and evaluation of evidence in contemporary legal practice. We will
examine the benefits of social media as a valuable source of evidence, along with
the intricate legal nuances that surround its admissibility in courts.

Moreover, we will analyse the authentication challenges posed by social media

evidence, where content can be easily manipulated or misattributed. Privacy
concerns are also a critical aspect to consider, as courts must navigate the delicate
balance between obtaining relevant evidence and protecting individuals’ privacy
rights in the digital age.

The article will further explore the complex intersection of social media and the
hearsay rule, as much of the content on these platforms consists of out-of-court
statements. Understanding how social media evidence fits within the established
rules of evidence is essential to ensure fair and just outcomes in legal proceedings.

In addition, the preservation and spoliation of social media evidence present

practical challenges for legal professionals. The duty to preserve relevant data and
the potential consequences of failing to do so demand careful consideration in the
pursuit of justice.

Finally, we will discuss the emergence of social media investigations as an essential

component of pre-trial strategy. Lawyers now use these digital investigations to
gather intelligence on opposing parties, witnesses, and potential jurors. However,
ethical considerations and adherence to professional conduct rules are vital to
safeguard the integrity of such investigations.

SOCIAL MEDIA AS SOURCE OF

EVIDENCE
Social media has emerged as a significant and influential source of evidence in
various legal matters. The vast amount of user-generated content on social media
platforms has made them valuable repositories of information that can be relevant
in a wide range of legal proceedings. Here are some key points highlighting social
media as a source of evidence:

User-Generated Content: Social media platforms encourage users to share their

thoughts, opinions, experiences, and interactions publicly. As a result, posts,
messages, photos, videos, and comments made by individuals can serve as
potential evidence in legal cases.

Real-Time and Spontaneous Nature: Social media content is often posted in real-
time and without much contemplation, making it a reflection of the user’s
immediate thoughts and emotions. This can provide valuable insight into a
person’s state of mind, intentions, and actions at a specific point in time.

Demonstrating Events and Relationships: Social media posts can be used to

establish the existence of relationships, events, or interactions that might be crucial
to a case. For example, it can be used to demonstrate personal relationships, alibis,
timelines, and activities of individuals involved.

Publicly Accessible Information: In many cases, social media content is publicly

accessible, meaning that it can be obtained and used as evidence without the need
for a subpoena or court order.

Impeachment of Credibility: Social media can be used to impeach the credibility of

witnesses or parties involved in a case. Inconsistencies between statements made
on social media and those made in court can be used to challenge a person’s
credibility as a witness.

Digital Footprint: Social media content leaves a digital footprint, which can be
valuable in tracking individuals’ actions, associations, and interests over time. This
can be particularly useful in investigations involving cyber bullying, harassment, or
online threats.

Identifying Relevant Witnesses: Social media can help identify potential witnesses
or individuals with relevant information who may not have been initially known to
the parties involved in the legal case.

Discovery and Litigation Strategy: Lawyers often conduct social media

investigations during the discovery process to gather evidence that can support
their case or undermine the opposing party’s arguments.

Business and Intellectual Property Cases: Social media content can be used as
evidence in cases involving intellectual property infringement, defamation, false
advertising, or contractual disputes related to online activities.

Social Media Metadata: Apart from the content itself, social media metadata, such
as timestamps and location data, can be crucial in establishing the authenticity and
context of the evidence presented.

AUTHENTICATION CHALLENGES
Authentication challenges are one of the most significant hurdles when it comes to
using social media as evidence in legal proceedings. The dynamic and digital
nature of social media content makes it susceptible to manipulation, fabrication, or
misattribution. Ensuring the authenticity of social media evidence is crucial to
establish its reliability and credibility in court. Here are some of the key
authentication challenges associated with social media evidence:
User Identity Verification: Determining the true identity of the social media user
who posted the content is critical. Usernames, profiles, and handles can be easily
created and impersonated, making it challenging to link specific content to a
particular individual.

Account Privacy Settings: Many social media users have private accounts, meaning
their content is only visible to approved followers. Accessing private content
without proper authorization or consent raises privacy concerns and can affect the
admissibility of the evidence.

Content Editing and Deletion: Social media posts can be edited or deleted after
being published. Lawyers must establish the authenticity of the content presented
in court, ensuring that it has not been altered or manipulated to support a
particular narrative.

Fake Accounts and Trolls: Social media platforms are also home to fake accounts
and trolls who engage in deceptive behaviour. Distinguishing between authentic
content and content generated by malicious actors is challenging but critical for
accurate representation.

Screenshots and Digital Manipulation: Screenshots of social media content are

commonly used to capture evidence, but they can be easily doctored or altered.
Properly attributing screenshots and validating their authenticity is essential.

Metadata and Timestamp Verification: Social media posts often contain metadata,
such as timestamps and location data, which can be valuable in establishing the
context and veracity of the content. However, metadata can also be tampered with,
necessitating careful examination.

Chain of Custody: Establishing a proper chain of custody for social media evidence
is crucial to ensure its integrity and prevent tampering. Documentation of how the
evidence was collected, stored, and handled is essential for its admissibility in
court.

Platform Changes and Updates: Social media platforms frequently update their
features and layouts, which can affect the appearance and presentation of evidence.
Lawyers need to adapt and address any changes that may impact the evidence’s
authenticity.

Jurisdictional and Cross-Border Challenges: Social media evidence from

international platforms may require cross-border authentication, involving
different legal standards and procedures.

Hearsay and Authenticity: Social media content often consists of out-of-court

statements, which can raise issues under the hearsay rule. Lawyers must carefully
assess whether the evidence is relevant, reliable, and admissible.

PRIVACY CONCERN
Privacy concerns are a central and complex issue surrounding the use of social
media as evidence in legal proceedings. While social media platforms offer a
wealth of potentially relevant information, accessing and using this data in a legal
context can raise ethical and legal dilemmas related to individuals’ privacy rights.
Here are some of the key privacy concerns associated with social media as
evidence:

Public vs. Private Information: Social media users often share personal information
publicly, but they may also have private settings that limit access to their content.
Lawyers and investigators must be cautious about accessing private information
without proper consent or legal authorization.

Expectation of Privacy: Users might have a reasonable expectation of privacy for

certain content shared on social media, especially in direct messages or private
groups. Using such content as evidence without obtaining proper consent or court
orders may infringe on individuals’ privacy rights.

Third-Party Involvement: Collecting social media evidence may involve the

participation of third parties, such as friends, followers, or other users. Revealing
the private information of these individuals without their consent can raise
significant privacy concerns.
Location and Geo tagging: Social media posts often contain location data through
geotagging, which can reveal an individual’s whereabouts. This can be particularly
sensitive in cases where privacy is a primary concern, such as domestic violence
cases.

Cyber stalking and Harassment: Social media evidence may expose individuals to
harassment or stalking, especially in cases where private information is disclosed
without consent.

Data Retention: Social media platforms may retain user data, even if the user
deletes or deactivates their account. This raises concerns about data storage and
how long personal information remains accessible.

Identity Theft and Fraud: In some cases, social media content can be used to
impersonate or defraud individuals. This underscores the importance of
safeguarding personal information shared on these platforms.

Inadvertent Sharing: Users may inadvertently share sensitive information on social

media without fully understanding the potential consequences. Using such
unintentionally shared information as evidence may raise ethical concerns.

Cross-Border Data Transfer: Social media platforms often store data in multiple
jurisdictions, raising questions about which privacy laws apply and how to ensure
compliance with different regulations.

Minimization of Collection: Legal practitioners must adopt a principle of data

minimization when collecting social media evidence, ensuring they only access and
use the specific information directly relevant to the case.

HEARSAY RULE AND SOCIAL

MEDIA
The hearsay rule and social media present a unique and intricate intersection in the
realm of evidence law. The hearsay rule is a fundamental principle in most legal
systems, which generally prohibits the use of out-of-court statements offered for
their truth. Social media content often consists of statements made by individuals
outside the courtroom setting, making it susceptible to the hearsay rule. Here’s
how the hearsay rule applies to social media evidence:

Definition of Hearsay: Hearsay refers to any statement, oral or written, made by a

person out of court that is offered as evidence to prove the truth of the matter
asserted in the statement.

Statements on Social Media: Social media platforms are filled with various
statements made by users, such as posts, comments, messages, tweets, and status
updates. When these statements are introduced in court to prove the truth of the
content, they are considered hearsay.

Admissibility Challenges: Social media evidence must overcome the hearsay rule’s
admissibility challenges to be used as evidence in court. The key question is
whether the out-of-court statement is being offered for its truth or for some other
purpose, such as demonstrating the declarant’s state of mind.

Exceptions to the Hearsay Rule: The hearsay rule has several recognized exceptions
that allow certain out-of-court statements to be admitted as evidence, even if they
are hearsay. Some common exceptions that may apply to social media evidence
include:

a.) Present Sense Impression: Statements that describe or explain an event or

condition and are made while or immediately after the declarant perceives the
event or condition.

b.) Excited Utterance: Statements made under the stress or excitement caused by a
startling event, which eliminates the likelihood of deliberate fabrication.

c.) State of Mind: Statements that reflect the declarant’s then-existing state of mind,
emotion, sensation, or physical condition, which can be relevant in cases involving
intent or motive.

d.) Business Records: Statements made in the regular course of business that are
kept as records by a business entity.
Evaluating Reliability: Courts assess the reliability of social media evidence to
determine whether it is trustworthy enough to be exempted from the hearsay rule.
Factors like the source of the statement, context, and corroboration may be
considered in this evaluation.

Declarant’s Intent: Understanding the declarant’s intent in making a social media

statement can be crucial. If the intent is not to assert the truth of the statement, it
may not fall under the hearsay rule.

Authentication and Context: Proper authentication of social media evidence, along

with presenting the context in which the statement was made, is essential to
overcome hearsay objections.

SPOILATION AND PRESERVATION

Spoliation and preservation are critical considerations when dealing with social
media evidence in legal cases. Spoliation refers to the intentional or unintentional
destruction, alteration, or loss of evidence, including social media content.
Preservation, on the other hand, involves taking proactive steps to safeguard and
retain potentially relevant social media evidence for use in litigation. Here’s how
spoliation and preservation impact social media evidence:

Ephemeral Nature of Social Media: Social media content is often transient and
subject to deletion or modification. Failure to preserve social media evidence in a
timely manner can result in the loss of critical information that may be essential to a
case.

Duty to Preserve: Once litigation is anticipated or commenced, parties have a duty

to preserve relevant evidence, including social media content. This duty extends to
all parties involved, including plaintiffs, defendants, and potential witnesses.

Triggering Events: The duty to preserve social media evidence can be triggered by
various events, such as receiving a complaint, filing a lawsuit, receiving a
preservation letter, or becoming aware of potential legal action.
Spoliation Sanctions: Courts take spoliation of evidence seriously and may impose
sanctions on parties who fail to preserve relevant social media content. These
sanctions can include adverse inferences, monetary fines, or even dismissal of the
case.

Preservation Techniques: Effective preservation of social media evidence involves

capturing and saving the content in a forensically sound manner. Screenshots,
electronic copies, or data archives can be used to preserve the content as it
appeared at a specific point in time.

Time Sensitivity: Preservation efforts must be conducted promptly due to the

dynamic nature of social media content. Delaying preservation can result in the loss
of evidence, as content may be deleted or modified by users.

Privacy Considerations: Preserving social media evidence must be done in

compliance with applicable privacy laws and regulations. Accessing private
content without proper authorization can raise ethical and legal concerns.

Verification of Preservation: Legal practitioners must maintain detailed records of

their preservation efforts, including the methods used and the date and time of
preservation. This documentation may be required to demonstrate compliance with
preservation obligations.

Cooperation and Communication: Parties involved in litigation should cooperate

and communicate regarding the preservation of social media evidence to ensure
that all relevant content is appropriately retained.

Ethical Obligations: Lawyers have ethical responsibilities to advise their clients

about the duty to preserve social media evidence and to take reasonable steps to
ensure compliance with preservation obligations.

Social Media Investigations:

Social media investigations refer to the process of gathering and analyzing
information from social media platforms for legal, corporate, or investigative
purposes. These investigations have become increasingly prevalent due to the
wealth of information that individuals voluntarily share on social media. Social
media investigations are conducted by legal professionals, investigators, law
enforcement, or private organizations to gather intelligence, evidence, or relevant
information about individuals or events. Here’s an overview of social media
investigations:

Scope of Investigations: Social media investigations can cover a wide range of legal
and non-legal matters, including criminal investigations, civil litigation,
background checks, employment screening, insurance fraud, intellectual property
disputes, and more.

Open-Source Intelligence (OSINT): Social media investigations often fall under the
realm of open-source intelligence (OSINT), which involves gathering information
from publicly available sources. This means the information is accessible to anyone,
including investigators, without requiring authorization or hacking.

Public vs. Private Content: Social media investigations focus on gathering publicly
available content, as accessing private or restricted content without proper
authorization would be unethical and potentially illegal.

Legal and Ethical Considerations: Social media investigators must adhere to legal
and ethical guidelines during their investigations. They should respect individuals’
privacy rights and avoid engaging in deceptive practices or misrepresentation to
gain access to private information.

Platform-Specific Tools: Investigators use specialized tools and software to

streamline the process of data collection and analysis across different social media
platforms. These tools can help them monitor, search, and capture relevant content
efficiently.

Verification of Information: It is essential for investigators to verify the authenticity

and accuracy of the information they gather from social media. Relying solely on
unverified information can lead to misinterpretations or erroneous conclusions.

Geo location and Timestamps: Social media platforms often include geolocation
data and timestamps on posts, which can be valuable in establishing the time and
location of events or activities.
Impact on Legal Cases: Social media investigations can significantly impact legal
cases by providing evidence, locating witnesses, uncovering potential motives or
inconsistencies, and corroborating or impeaching witness statements.

Ethical Boundaries: Investigators must be mindful of the ethical boundaries while

conducting social media investigations. They should avoid direct contact with
subjects, impersonation, or creating fake accounts.

Admissibility in Court: Social media evidence gathered through legal and ethical
means can be presented in court, subject to authentication and relevance
requirements. Courts may scrutinize the methods used to obtain the evidence and
the accuracy of the data presented.

INTERNATIONAL CASES
United States v. Meregildo (2013): [1]This case addressed the admissibility of
Facebook posts as evidence and highlighted the importance of properly
authenticating social media content.

Largent v. Reed (2015)[2]: This case involved the use of social media evidence to
challenge a plaintiff’s credibility, emphasizing the role of social media in
influencing legal outcomes.

Lester v. Allied Concrete Co. (2014):[3] In this case, a juror’s Facebook post about
the trial resulted in a mistrial, illustrating the impact of social media on juror
conduct and the potential for bias.

CMC v. Salazar (2015):[4] This case discussed the privacy concerns surrounding
social media evidence and the need to strike a balance between accessing relevant
data and respecting individual privacy rights.

State v. Nucci (2015)[5]: The court in this case ruled that social media evidence
could be considered hearsay unless the original poster testified or other exceptions
applied.

Lorraine v. Markel American Insurance Co. (2007)[6]: This case addressed the duty
to preserve social media evidence and the implications of spoliation if relevant data
is intentionally destroyed.

CONCLUSION
In conclusion, the impact of social media on the law of evidence has been a double-
edged sword, bringing both opportunities and challenges to the legal landscape.
The widespread adoption of social media platforms has expanded the potential
pool of electronic evidence available in legal proceedings, offering valuable insights
into the lives and actions of individuals involved in a case.

Social media content, including posts, messages, photos, videos, and comments,
has become a significant source of evidence in various legal matters, from civil
disputes to criminal investigations. It has proven useful in establishing
relationships, demonstrating intent, impeaching credibility, and corroborating or
refuting claims.

However, the rise of social media evidence also presents authentication challenges,
as content can be easily manipulated or misrepresented. Establishing the
authenticity and reliability of social media evidence has become a critical task for
legal professionals, involving metadata analysis, digital forensics, and expert
testimony.

Privacy concerns loom large in the context of social media evidence. Striking the
right balance between obtaining relevant evidence and safeguarding individuals’
privacy rights is a delicate task for courts and lawyers. Accessing private content
without proper consent or legal authorization can raise ethical and legal dilemmas.

The hearsay rule casts a shadow over the admissibility of social media evidence, as
much of the content falls under the category of out-of-court statements. Lawyers
must navigate the complex landscape of hearsay exceptions to ensure the evidence
is relevant and trustworthy.

Preserving social media evidence is essential to avoid spoliation and maintain data
integrity. Parties involved in litigation have a duty to preserve relevant content,
and failure to do so can lead to adverse consequences in court.
Social media investigations have become indispensable in modern legal practice,
aiding in gathering intelligence and uncovering critical information. However,
investigators must adhere to ethical guidelines, respect privacy rights, and ensure
data collection is lawful and transparent.

Social media has revolutionized the way evidence is collected, presented, and
evaluated in legal proceedings. While it offers a vast repository of potential
evidence, it also presents unique challenges related to authentication, privacy,
hearsay, and spoliation. Legal practitioners must stay informed and adapt to the
ever-changing digital landscape to effectively utilize social media evidence while
upholding the principles of fairness, justice, and privacy. By carefully navigating
the complexities and nuances of social media evidence, the legal community can
harness its potential as a powerful tool to seek truth and render just decisions in the
modern era.