Social Media in Litigation: What Businesses Should Know

By January 17, 2013

By Steve I. Silverman
Monday’s DBR featured an article about social media and the evidence that it might create.  Social media is proving to be a hot source for evidence in litigation.  My partner, Jason Marks, previously blogged about using social media in the family law context on the Kluger Kaplan blog.  But what about social media and commercial litigation?
There are two general areas where evidence may exist in the social media context – the company’s social media pages and in the pages of its employees.  For example, a business may have its own Facebook page, Twitter handle, a LinkedIn profile and perhaps an Instagram or Pinterest account.  In addition, each employee, at all levels of the business, is likely active on at least one or more of those social media outlets.

Today, let’s look at the company’s own social media pages.  Social media is an important component of many businesses’ growth strategies.  While there is no doubt that businesses do and should use these outlets to promote and grow their customer base, there are certain issues that may arise in the event the company encounters litigation.
Obviously, what a company posts on its social media pages is discoverable.  And as we have been repeatedly told, anything on the Internet can be used against you in court if discovered, and it is no different for businesses.  Even so-called “private” posts and messages have been found to be discoverable.
The way a company positions itself to its customers, the type of content it puts out on its social media channels and the way that a company interacts with its followers can all be used in litigation.  Even the way a company portrays itself online can also be used against it in future litigation.
Some examples include: an investment firm makes repeated representations that it can double your initial investment in a Facebook post or Tweet and is later sued for fraudulent misrepresentation; a restaurant’s pictures on Instagram clearly show a loose light fixture dangling from the ceiling and is later involved in a personal injury suit; a large commercial bank received repeated messages, Facebook posts, and Tweets suggesting a major security breach and identity theft of its customers but does nothing to respond until an unreasonable amount of time passes.
Many businesses outsource their social media to  third party vendors and do not routinely check to see what is being disseminated.  This disconnection from a critical part of your company’s public image can be a problem.  Generally businesses do not focus on the content of their social media outlets until litigation has commenced, when it is too late to correct.  It is important to monitor the content and be thoughtful about what you put on the Internet.  Businesses may even consider having a policy for social media so that it can be disseminated to third parties who control the content.  Remember that even posts that are erased may still be lurking on the web long after you think it’s gone forever.  Next week, we will look at a more controversial issue: employees’ use of social media and how it might effect corporate litigation.