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How Social Media Harms Cases

Delete Facebook, Lawyer Up

One of the most underappreciated risks in a domestic relations case (divorce, custody, etc.) is the harm that is posed by the use of social media. By design, these platforms have trained us to disclose personal details about our lives and catalog them in a well-indexed and searchable record. These platforms are subtly, but well designed to encourage positive feedback loops that keep you engaged with and consuming their content – often for the purpose of collecting and selling your data – but it also has an effect of lowing the bar on what you’re willing to share in a public space.

To be clear, all social media is a public space no matter how locked down or secure you think your page is. Even if you bar everyone you know from viewing the content on your page by accepting friend requests, anything you put on social media can still be found and viewed by a third party. It would be no different than writing letters and placing them in a lockbox that is discovered by someone else, cracked open, and read. Too often these things occur and create negative outcomes in client cases, so it’s important to take caution when utilizing social media while going through a legal battle. Frankly, it’s probably best to just not use it at all as there have been studies performed that explore the relationships between increases in social media use and declining quality/satisfaction in marriages.

Simply put – social media is going to cause you more harm than good.

You Never Know Who’s Watching

The most prominent problem with social media is our perception that it can be made private. That by implementing a few privacy settings, we can secure our digital domains and make sure that it’s kept safe from people with whom we don’t want to share with. The problem with this comes on several fronts.

First, your friends and associates will take sides, and you can’t always be certain that they will take yours. It is not uncommon for a person going through a custody fight to believe they are the better parent and in the right, while on the outside of their personal sphere their entire family views them as unfit and is actually backing the opposing party. You cannot guarantee anything you’ve put on social media will not make its way to the opposing party and their legal team. Social media pages can be comparable to an invite only house party – sometimes, people show up and you have no idea how they got there. Treat them like the public spaces that they are.

Exposure concerns aside, take some time to think about how many devices you own that are connected to the internet and that you use on a regular basis. Personally, I have a cellphone, a work laptop that I can access social media on for business management, a personal laptop, and two tablets (this does not include other items that can access the internet in my home, just that I simply don’t use). With my internet of things slowly building out, I also have typically synced my profiles across each device so that I don’t have to spend time logging back in and out of things every time I switch platforms – and so in lies the hazard.

It’s not uncommon for us to lose track of devices that we have logged into with our social media accounts, and in some cases, actively have notifications and other prompts sent to. Especially where profiles are synced across devices that may be forgotten about, communications between attorneys and clients, libelous statements defaming character, and other damaging content has been uncovered because someone never logged out.

The Past Can and Will Haunt You

Notwithstanding privacy issues, another major concern that makes social media so problematic is that it effectively creates a timeline of your behavior. All the things you’ve posted, shared, liked, tweeted, and consumed leaves a trail of breadcrumbs that can be used against you. [In]famous far-right pundit, Alex Jones, lost custody of his children in a Texas divorce case in no small part due to the long list of videos he posted to YouTube which detailed his tendency to erupt and spread conspiratorial information.

Even when content you’ve shared is not so out in left field, contextual information around it can be used to craft arguments. For example, claims that you are struggling with money and can’t afford to pay a certain amount of money in child support can and will be undermined by any photos you’ve posted of extravagant purchases or vacations that you’ve had.

Regardless of whether or not it’s true, these pieces of information can be used to bolster the arguments of your soon-to-be-ex. Especially vindictive partners can try to spin narratives about infidelity, recklessness, substance abuse, or whatever else they can think of and use the things you’ve shared as proof. A video of you leaving a club at 2 in the morning, drunk, may not be viewed as a night out as any adult may do on occasion, but used to reinforce these negative narratives about your character.

Simply trying to delete or otherwise hide these items isn’t enough. As the old saying goes, the internet is forever. There are websites that send A.I. crawlers through the web and archive old pages. People can download and preserve photos and videos directly or through other tools online. A subpoena for your social media records can even order that you download and disclose all of the content of your profiles, even if you’ve deactivated them. Once it’s online, there is no taking it back, and it may be something you need to address.

Loose Lips Sink Ships

The last legal hazard of social media is the tendency to post feelings and thoughts on what’s going on currently. In 2020, the Supreme Judicial Court of Massachusetts ruled that you have a right to post what you want on social media during a divorce (See Masha M. Shak v. Ronnie Shak), but it is absolutely not in your best interest to do so. Disparagement and other remarks made can have negative influences on your case, especially if they are deemed to have been in conflict with the best interest of a child. You do not want to be the one who is exposing a child to public confrontations of your divorce or custody dispute.

The Bottom Line

While social media is a tool like any other, it has knock on effects that can cause headaches during a divorce case. Whether it’s previous comment and post history or even the temptation to make a new post that won’t reflect well on you, best practices would suggest to avoid the platforms all together. Still, like all tools, it’s not inherently bad and you can find positive means of support and community there during difficult moments. If you’re not willing to kick the Facebook habit any time soon, then try to keep the following in mind:

  1. Don’t put anything on social media you wouldn’t want a judge or your soon-to-be-ex’s attorney to see.
  2. Set up privacy protections, including changing your passwords and forcing a log out of all devices through the settings menus.
  3. Do not drag your fight into the digital public square.
  4. Avoid posting things that might upset the opposing party. The temporary satisfaction is not worth the headache it can cause.
  5. Don’t engage in new relationships or post about them until everything is over with.
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