As social media platforms and apps such as Twitter, WhatsApp, Facebook, Instagram, SnapChat, and YouTube become increasingly enmeshed in the fabric of our lives, the unintended consequences of their use cannot be overstated. Such was recently the case for Tesla, Inc., when on November 8, 2018, it named Robyn Denholm as board chair, fulfilling its agreement with the Securities and Exchange Commission (SEC) to remove Elon Musk, the company’s founder, from this position, after he made a series of “false and misleading” tweets about taking Tesla private. Musk agreed to step aside as chairman of Tesla, Inc., and pay a $20 million fine in September after the SEC charged him with securities fraud. The company also agreed to pay a $20 million fine, appoint two new independent directors to its board, and more closely monitor Musk’s public communications.
The stakes for inappropriate remarks on social media are rising even as executives, politicians, and ordinary individuals are increasingly using social media to share their messages, both formally and informally. Some corporate CEOs have become minor celebrities and influencers at an entirely new grass-roots level. Politicians take to it to share their messages with their constituents, creating a sense of rapport.
Despite the feeling of intimacy, social media can be a very public forum. Increasingly courts are finding that evidence gleaned from social media can be used in both civil and criminal litigation, and the Supreme Court has ruled on a number of issues relating to its use, giving rise to the need for its users to weigh the risks and rewards of its use. And as we saw in the Tesla case, corporations can be held accountable for the words of their executives, forcing companies to assess a whole new area of risk.
The rise of social media as evidence is recent and rapid. It was less than a decade ago, in 2009, that Daniel Knight Hayden became the first person to be prosecuted based on his use of social media, after he tweeted “START THE KILLING NOW” and made clear his intentions to turn an April 15 tax protest into a mass murder. Today, however, both civil litigation and criminal prosecutions based on individuals’ social media usage are common, and records gleaned from it are regularly accepted as evidence. For example, on September 27, 2018 Christine Blasey Ford testified before the Senate Judiciary Panel about her use of WhatsApp to communicate with the Washington Post. In July 2018, The New York Times reported that special counsel Robert Mueller III was “scrutinizing” tweets and other negative statements from the president about Attorney General Jeff Sessions and former FBI Director James Comey.
As a result, social media has increasingly become part of an attorney’s litigation strategy. Attorneys often use social media to provide appropriate representation to a client, and analyzing the public presence of witnesses, potential parties, or even one’s own client has become reasonable and expected. However, information from social media must be gathered legally and ethically. Bypassing privacy settings or “friending” someone to gain access to their account has been generally deemed unethical and, in some cases, illegal. Information gleaned this way can jeopardize an otherwise solid legal case.
However, the use of social media in litigation may not always be the best course. Michigan State University faced harsh criticism when it came out that a public relations firm billed the university more than $500,000 in January 2018 to monitor the social media activity surrounding the Larry Nassar sex abuse case, at the time when his survivors were giving impact statements at his sentencing hearings. Many of those impacted said they felt violated all over again. The PR firm no longer works with Michigan State.
For those using social media, a few rules by which to live. Don’t post anything on social media you wouldn’t want the world to see, because they might. Conduct trainings for your employees discussing what is appropriate to post, and model appropriate behavior. And most important, think before you click. Today’s impulse might be tomorrow’s SEC investigation.
Because each social media platform comes with its own rules, policies, and procedures, it is essential that those interested in assessing the risks associated with it, either proactively or reactively, or training employees about its use, work with professionals who understand the nuances and the dos and don’ts of reviewing information on each platform.
Our practitioners have decades of experience and come from a variety of backgrounds—including career investigators, former members of federal and state law enforcement, and forensic examiners—allowing our team to work together to help clients assess and mitigate attendant risks, and when pursuing the use of social media as evidence, to ensure that information is gathered, preserved, and used in a legal and ethical manner.