chevron-down Created with Sketch Beta.

Navigating the Social Media Minefield

What exactly is social media?

Social media is technology-based forms of communications that foster interactions between virtual networks of people. The interactions often include pictures, videos, and the sharing of personal information. There are a slew of social media applications available for both computers and smartphones; the more popular ones are Facebook, Instagram, Twitter, WhatsApp, and YouTube.

Does social media have an impact on legal matters related to divorce and separation?

Possibly. It depends on information previously shared in public and private settings. If you do not have a very public life on the Internet, the impact of your social media activity could be limited. However, your opposing party (that is, your soon-to-be ex-spouse) may have been more involved in social media activity, and that could impact your divorce and separation. There may also be social media information from third parties that can aid—or damage—your legal situation.

What are some of the ways that social media can affect the outcome of divorce and separation proceedings?

To quote Elizabeth Barrett Browning’s Sonnet 43, “Let me count the ways.” First, social media can provide a significant way of discovering whether a spouse is committing adultery, which may, depending on your state, affect matters such as spousal support. In addition, social media can be effective in proving that a spouse has financial resources that belie their contentions in your case. Perhaps most importantly, information put on social media by either party can be used as a damaging exhibit in custody cases.

Do courts have particular rules regarding how they—and you—should handle information on social media during your divorce or separation proceedings?

Possibly, depending on your state. Some states have mandatory rules that prevent either party from permanently deleting or destroying any social media posts during the pendency of the divorce and separation proceedings. Also, each state has different rules regarding lawful ways of obtaining and using electronically stored information in court. Additionally, the manner in which such social media information can be presented as evidence to the court varies from state to state. You should consult an attorney specializing in domestic relation matters in the state where you reside to know the rules regarding saving, obtaining, and presenting social media information in legal proceedings.

Can you limit the information that your spouse and his or her attorneys can obtain from your social media accounts?

While it is never advisable to completely destroy any such social media, it is often wise for you to disable or shut down any social media accounts in order to prevent further posting or dissemination of information that can be detrimental to your case. It is also a wise tactic to check privacy settings to ensure that all posts are set to “private.” While this does not absolutely shield any past postings, it can limit exposure of such information to the general public. Likewise, you should review the names of all of your friends on Facebook and other social media accounts to make sure you are not linked to any individuals who can provide access to the opposing side.

Should your attorney advise you about the perils and pitfalls of social media?

An attorney should definitely advise a client about the potential dangers of online postings through social media. As a matter of prudence, it should be standard practice for an attorney to have a client indicate his or her understanding of social media dangers in the legal services contract or some other executed document. Depending on the state in which the attorney practices, rules of ethics and professionalism may require that such advice be provided to clients during the course of representation.

Does your attorney have any duty to refrain from social media posting about you or your case?

Typically yes. The American Bar Association’s formal ethics opinions have specified that attorneys should not post anything on social media that reveals any confidential information about you or your case. The rules apply even if representation has concluded or if your attorney has withdrawn as your counsel of record. Generally known information may be posted, but only in a limited way. Moreover, attorneys should not reveal any information related to representation even if it is included in a public record. Much like clients, attorneys should refrain from any social media activity that has any case specifics.

Who owns the information on social media?

It depends. Some social media platforms allow for retention of ownership by the user, while other social media platforms maintain exclusive rights and control to any information provided by the user. Moreover, even if you as the user attempt to eliminate all traces of social media activity, it is likely still present in some medium on the Internet, either as posts on current third-party user accounts or as part of user content sold to third parties for profit through such activities as advertising and opinion collection. Essentially, once something is published on the Internet, there may be no chance to absolutely assure that the information has been removed from any risk of exposure.

Should I be concerned about posts made by third parties in which I am included?

Yes. As careful as you may attempt to be with respect to your own social media posts, other individuals’ inclusion of you in their social media postings can have a damaging impact on your divorce case—especially if the activities draw into question your fitness for parenting.

What other privacy concerns arise out of social media applications on cellphones?

Many social media applications collect tracking data that keep both past and real-time information about your location. Such applications, in tandem with cellphone location services, can enable you to be located with the push of a button. During divorce and related proceedings, it is essential that any social media tracking applications, or any other tracking applications on the phone generally, be deactivated so that your location can no longer be tracked. This is especially true if your opposing party has had issues with domestic violence.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Gene Brentley “Brent” Tanner

Parker Bryan Family Law

Raleigh, NC