Can Your Facebook Post be Used Against you in Court?

Social media is a part of everyday life for many California residents. They keep connected with family on Facebook, build business contacts through LinkedIn, and even generate income through blogs. However, within the context of a court case, anything you say online may as well have been shouted from the rooftops. Find out how your Facebook posts and other social media content can be used against you in court, and what you can do to stop it.

Yes, Your Facebook Posts Can Affect Your Court Case

Many California residents don’t understand what they are doing when they post on social media. They assume that because they have to accept friend requests, their Facebook posts are private and a safe place to express their thoughts and emotions. However, when it comes time to go to court, Facebook, Instagram, LinkedIn, and other social media platforms can play a big role in the success of your case. To better understand how social media plays into a court case, let’s consider Jamie’s divorce: 

Jamie (not a real person) maintains accounts on Facebook, LinkedIn, and Instagram, writes a fashion blog as part of her income, and does occasional TikTok videos on the latest trends. She’s been married for 12 years and has two children younger than 10 years old. She was an early adopter of Facebook and has posts dating back to before she met her husband, Dave. Now, their marriage has broken down and Dave has filed for a divorce, claiming that he should be awarded custody of the children and that Jamie should pay him child support based on all the money she earns online.

When Jamie comes in for an initial consultation with the ADZ Law team, one of the things we will discuss is her past and future social media use. That’s because if her husband gets a hold of her Facebook posts or other online content, it could be used against her in court. You may think her past statements would be hearsay, but California law carves out an exception, saying the parties’ past statements can be used against them later. That means whatever you say online, it could come back to haunt you while you are testifying in front of the judge.

How Social Media Content Can be Used in a Divorce Action

Your online posts can be used against you in any kind of court case, from a civil lawsuit to criminal prosecution. However, it can sometimes be the most damaging in the domestic context such as divorce or child custody cases. Depending on the issues in your case, and the kind of things you post online, your social media content could be used for:

Child Custody Determinations

Jamie considers herself something of an online influencer. Her Instagram account is full of pictures from the latest restaurants and bars, often with a drink in hand. During the custody part of her case, Dave’s attorney can admit those pictures as proof that Jamie has a drinking problem and it affects her ability to act as a parent. Social media content can also play into a custody case by showing: 

  • That a parent is away from home during their visitation
  • What a parent says about their child online (i.e. complaining about behavioral challenges)
  • That the child is exposed to risky situations or third parties
  • Whether a parent is oversharing about their child online
  • That a parent’s claims of domestic violence are false (i.e. showing pictures together with the spouse days after claimed abuse)

Property Division

Some of Jamie’s friends that she goes out with are men. Dave believes that she is having affairs with some of those men. He wants to use TikTok videos of Jamie dancing with those men at dance clubs as proof that she caused the marriage to breakdown.

California is a no-fault divorce state. Proof of an affair or other fault-based reasons for divorce won’t have much impact on the court directly. However, the same evidence can sometimes be used to influence a judge’s decisions about the division of marital assets. While Jamie’s dancing videos probably won’t affect the way the bank accounts are divided, in other cases, social media posts can provide evidence that one spouse has already moved into a new home, lost large sums of money gambling, or used family assets to buy her new romantic partner gifts.

Alimony Amounts

Jamie makes some of her money online through blogs and affiliated links in her social media content, but Dave has always been the primary wage earner in the family. When Jamie requested alimony (spousal support) as part of the divorce, Dave could use her Facebook posts against her in court to show:

  • She had a higher earning potential than her wages suggested
  • She must have additional income because she takes vacations and goes out to eat frequently
  • Her marketable skills in social media content generation which could allow her to get a higher paying job

How to Protect Your Online Content During a Court Battle

Given how influential pictures, videos, and posts from social media can be, you will want to have a strategy to protect your online content before you start your lawsuit or divorce. California law prevents you from deleting or destroying digital content that could be evidence in a case, but that doesn’t mean you can’t protect yourself going forward. We recommend:

  • Changing all your passwords (including email accounts) to strong passwords and using 2-step authentication to prevent unauthorized access. Don’t share these new passwords with anyone, even family.
  • Consider a social media hiatus for the duration of your case. (This isn’t necessary in every case.)
  • Lock down your privacy settings.
  • Unfriend, block, and otherwise remove your opposing party (in Jamie’s case, Dave) and anyone likely to share your information with that party.
  • Work with your attorney to determine what you can remove or set to private that might reflect poorly on your case (such as certain photos, videos, or posts). However, California law prevents parties from deleting or destroying media content during a case, so be certain to talk to your attorney before deleting anything.  
  • Be especially cautious about new friend requests or contacts and emails containing attachments.
  • Never post anything online about the case, especially how you feel, financial information, or what your lawyer has told you. 
  • Look at everything you post only as though it will be read by an angry, paranoid conspiracy theorist. If it could cast you in a bad light, skip it.

Not everyone can completely shut down their social media accounts during a divorce or civil lawsuit. Some people, like Jamie, rely on the Internet for their livelihood and their social connections. Luckily, you don’t always have to. However, if you do not take precautions to protect yourself and your online content, your Facebook posts could be used against you in court. 

At ADZ Law, LLP, we understand the value and dangers of social media content to a divorce or civil lawsuit. We work with all our clients to develop a social media strategy they can use to protect themselves while the case is pending.  If you are in the San Francisco Bay area of California, we invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you.