As recently as a few years ago, authentication proved to be a substantial hurdle for an attorney seeking to admit social media content into evidence. Recent decisions, however, reveal a trend toward admission reports Corporate Counsel.
The Rules of Evidence require that evidence must first be “authenticated” prior to be admitted at trial. It requires a showing that the evidence in question is what its proponent claims. In other words, it must be reliable and overcome any reasonable question that the evidence has been fabricated.
Social media sites present unique challenges for authentication. Since social media profiles can be easily created by anyone with an email address and some spare time, questions often arise as to whether the social media profile offered into evidence is the actual profile of a party in litigation or whether a particular communication was sent by a party as opposed to someone else who may have had access to their profile. Based on the uncertainty of the reliability of someone’s purported social media profile, admitting social media content into evidence is not as easy as pointing to someone’s Facebook profile bearing their name and photograph to establish the identity of the individual associated with the social media account.
In an instance of what Judge Glenn T. Harrell Jr. of Maryland’s highest court has described as the “technological heebie jeebies,” several recent courts have required more, expressing concern with false profiles, account hacking, and “Photoshopping.” Recent cases illustrate that litigants may use the indelible digital trail left by users of social media, their digital devices, or obtained directly from the social media provider to help authenticate social media evidence.
The classic case of disputing ownership of social media postings and messages were addresses in two recent cases: Griffin v. State, 19 A.3d 415 (Md. 2011) and State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011). In these cases, courts were sympathetic to claims of falsely created accounts or “hacked” messages. The Griffin court held that “the date of birth of the creator and her visage in a photograph on the site” was insufficient to authenticate the purported owner’s authorship of a message. Similarly, Eleck held that authenticity was not established by “the fact that [the claimed author] held and managed the account.”
Nevertheless, as Eleck noted, “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium”; both cases pointed to forensic examination of devices or validation by social media providers as potential means of authenticating such evidence. As use of these methods of authentication becomes more widespread, it seems likely that courts will not look favorably upon evidence put forth without forensic support.
At the same time, traditional means of authentication, such as the distinctive content of a statement, retain force in the world of social media. In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), Texas’s highest criminal court upheld a murder conviction that relied heavily on postings from several MySpace accounts attributed to the defendant—despite the lack of any forensic evidence or outside authentication. After describing in detail several dozen messages, photographs, and other details linking the profiles to the defendant, the court ruled that the remote possibility “that the [defendant] was the victim of some elaborate and ongoing conspiracy” went to the weight of the evidence, not its admissibility. The Tienda court did cite Griffin, however, for the suggestion that in future cases, proponents of social media evidence would be well advised to include extrinsic proof of authenticity.
While these cases begin to provide some clarity as to what courts may require to authenticate social media content, there is still no clear standard that has emerged across all jurisdictions. These cases simply represent the tip of the iceberg. The lesson that can be taken away from these cases is that, more likely than not, courts will require more information than simply the social media user’s name, profile picture, and date of birth to confirm the authenticity of the profile. The more information to support the inference that the social media content is of the user that it purports to be, the better.
CEO & Founder of Social Media Law & Order
Ethan teaches social media CLE programs to lawyers, law firms, and legal associations. He can design a one hour, half day, or full day workshop at your office, firm retreat, or conference that will be approved for both ethics and general CLE credit. Learn more about how Ethan can be your social media law keynote speaker at your next conference on topics related to social media and the law.