Say someone is harassing you—or your client—on a Facebook post, comments or in Facebook messages. Can those comments be used in court? Whether it’s Facebook posts and comments, Instagram pictures, Twitter tweets or YouTube videos, the short answer is yes: both public and private social media content can be admissible in litigation. There’s a catch though: the social media profiles must be preserved in a specific way to make them admissible in court.
How to Capture Facebook Evidence in a Way That is Admissible
As you might imagine, your opponent will likely try to discredit your social media evidence, and say that the Facebook post was altered or taken out of context.
If all you did was take a screenshot or hit “print”, you won’t be able to combat that challenge. For a social media preservation to be admissible in court, the attorney or a party to the complaint should not put themselves in the “chain of custody” and should adhere to the Federal Rules of Evidence, or FRE.
FRE Rule 902(13) and (14) specifically allow electronic evidence so long as there is a certification from a qualified e-Discovery collection expert. Software companies that specialize in capturing web evidence, like Page Vault’s Browser software, can provide this certification for captures made in the software, or you can outsource the capture to a web collection expert to make the capture and certify that their preservation is true and unaltered.
Additional best practices include:
- Capturing all metadata associated with the content to prove authenticity (IP addresses, timestamps, URLs, etc.).
- Obtaining an affidavit to verify the authenticity of the web capture technology and the capture method.
- Capturing a true and accurate representation of the web content so that when saving or printing, it looks exactly like it appears online.
The easiest way to do this is to use legal-grade software that includes metadata on captures and removes you from the chain of custody, or to work with a web collection service designed for legal that would be able to properly collect specified web content during discovery or litigation.
What to Capture to make Facebook Evidence Admissible
To start, it is a best practice for attorneys to capture not only the relevant content, but the entire social media profile. On Facebook, that means capturing the person’s entire Timeline, and all of their photos and videos if relevant to the situation. It’s also recommended to capture all posts and comments on individual posts or photos; if you’re capturing messages, it’s best to preserve the entire messaging history.
Capturing the entirety of the profile and chat history is helpful not only in case it gets deleted, but also to provide the full context of the posts and conversations. Many cases, such as IL v. Lorenzo Kent, demonstrate why it’s vital to capture an entire Facebook profile, and not just parts of it.
For more recommendations, see our guide on where to look for evidence on Facebook or get our visual step-by-step guide to Facebook (and other social media) captures.
When trying to capture social media evidence, make sure you don’t violate any ethical standards in the process. For instance, it’s unethical to attempt to gain access to private content or a private Facebook account in a deceitful manner, such as “friending” someone to gain access to non-public content, or for an attorney to advise a client to change their social media content so as to tamper with evidence.
If you follow these guidelines, your Facebook and other social media captures will have their best chance of being admissible in court.
About Page Vault
Page Vault helps legal professionals to capture and preserve web content such as webpages, websites, social media, videos, and images. Users can have confidence in knowing that Page Vault’s collection experts accurately preserve all necessary content and supporting data within the requested output format. Whether using their in-house software or vendor services, Page Vault can accommodate projects of any volume or complexity.