By: Jeff J. Horn, Esq.
We may have been shocked or amused by some massive social media mistakes. Remember the time Twitter accidentally sent out a message regarding buying another company, or when American Apparel utilized the image of the space shuttle Challenger explosion as fireworks, or when Adidas congratulated runners for “surviving” the Boston Marathon? These are mistakes made by huge corporations with sophisticated marketing people and lawyers. They are errors of enthusiasm and judgment. Social media affords us the magic of pushing out a critical thought or image in an instant and at no cost. But is it really at no cost?
When we write and inspect the final published product – whether a note to a loved one, a business letter, or an invitation to a party – we plan our message to be clear, understandable, readable, and unambiguous. We may write it first, review it, edit it, and review it again. Social media affords an enormous shortcut. Little time and brainpower are needed to put our word out to the world. A picture and a few words expressing an idea animate our vibrant thoughts and suddenly we have published messages to our friends and followers that may have gone through multiple server farms. Those words and images last forever.
Internet estimates vary, but there are more than 2 billion Facebook users and over 300 million Twitter accounts. An average Twitter user has around 700 followers. Quick math – you post something and all of your followers re-post it … that post will be seen by approximately 500,000 Twitter users. What if you post something in error or, upon second look, reconsider the content of your post? You can always delete posts. But once it flies, it exists.
Now that you have a sense of what happens in social media land, let’s answer the question – how does this affect me and my divorce case?
First, remember what I just stated: your posts never go away.
Second, know that your friends on social media may or may not be actual friends. They may be eager to detect and share your errors!
Third, the images and words posted to social media can and will be captured and interpreted in a contested case.
Fourth, your username and password are discoverable – the other team’s lawyer may have access to your social media accounts.
So what? What can be found out about me and used against me?
Pictures tell a thousand words. Your social media story, newsfeed, and posts say a lot about your lifestyle, work, income, travel, opinions, and use of drugs and alcohol. Expressions of affection or threats of harm can and will be captured, interpreted, and applied in any contested matter.
A young couple chronicled their entire relationship on Snapchat. The young woman claimed to have broken up with my client, told him for weeks to leave her alone, and sought to impose a restraining order. She told the Judge of him threatening her and following her at odd hours, apparently leaving clues that he knew of her whereabouts – signaling his intention to act regarding her new boyfriend. Enter Snapchat. The parties in the case had a 277 Day Snap-streak leading up until the day the young lady sought a restraining order. They each sent one another one or more Snaps in each of the prior 277 days – including the days when the young lady testified that she was attempting to break away from my client. In fact, she was reaching out to him on Snapchat.
Contrary to her testimony, she had been inviting herself over to his home, entering his home, and sleeping with him during the time she allegedly told him to go away. Her case was dismissed after cross-examination. My client never had to testify one word.
“Do Anything for Her”
My client, the ex-wife, paid her ex-husband a substantial amount of alimony. At the time of divorce, he operated a solo business. Later, social media posts were shared with my client indicating that he was operating another business with his new love interest and fiancé. When we inquired, he demurred, asserting that he was merely helping out his fiancée. He stated that he would “do anything for her.” A little digging revealed that he was the front man for his fiancé’s entire business. His picture appeared on every social media post. His bank account received payments made through online sales to the new venture. The child of the marriage was paid by the ex-husband to do work for the new venture. As the case proceeded, the ex-husband’s business ownership and involvement became more apparent with each unveiling of another layer of social media … even down to the copyright statement including his initials. Cornered in her testimony, his fiancée explained why she, during the middle of trial, suddenly removed the ex-husband from all of the new venture’s social media posts. She claimed, “I was only trying to help.”
My client’s ex-wife had been to multiple drug and alcohol rehabs. She had completed the course of rehab and resided in a sober living community. She returned and attempted to assert her role as mom. My client was open to the idea. He never wanted his child to be without a sane, clean, sober mom. Mom seemed to have put her addiction past behind her and was taking steps to lead a more healthy and productive life. Mom enjoyed a boat ride with friends on the Barnegat Bay. The friends snapped several fun-filled photographs and posted them on social media. The post included my client’s ex-wife acting goofy – surrounded by a bunch of people drinking on the boat and holding bottles of beer and glasses filled with mixed drinks. Once again, my client received the posts from a friend of a friend of a friend. Mom’s rehab and reunification with their child was stalled.
Out of Work
My client’s ex-husband stopped paying support. He said that he was out of work. This statement was true to an extent. He was out of work. He and his girlfriend were in Key West drinking from sunup to sundown, snapping pictures and posting them to social media. My client received these posts from a friend of a friend and used those to slam the ex-husband in court for failing to pay his court-ordered alimony and child support.
On one extreme, before going to court for a divorce or family matter, or for any litigated matter, you may be wise to shut down your accounts and go radio silent for a while. More likely, you will be well advised to scan your posts and pictures and imagine what interpretations of your posts and photographs might cause you grief in your case. Clean up your social media act before it is too late. If it is already too late, at least have knowledge of your public narrative and a reasonable explanation when your story in court contradicts your account told to the world through social media.