Facebook Court of Law?
The Era of Social Media and Legal Disputes
Today, unlike in the days of my childhood, legal disputes are often argued online through the innumerable social media sites at our disposal. As a Gen Xer, I straddle the world of privacy that we all enjoy and the world of voyeurism that is social media. It seems that we have all become experts in everything, according to our online posts, and we have found our strength behind the safety of our keyboards. I have fallen in the trap, and you may have too. In addition to the highly charged political posts we have seen and may have participated in, we are also seeing an uptick in the number of disputes being tried in the Facebook Court of Law. We typically see the uptick occur in small claims lawsuits where most often the litigants are not represented by counsel. Is it a good idea to use social media to try your case? Does this help or harm your case?
Recently I witnessed a homeowner/contractor dispute unfold on a social media site and, as an Attorney, I cringed each time I read a new post or comment. I cringed because every time a new post or comment thereto showed up online, I was thinking about how it could be seen in court, especially once evidence was presented by the opposing party. Each new post seemed to generate mob mentality and encouraged the perception that the statement was indeed the truth. The comments seemed to escalate the reactions of the homeowner from disgust and disdain for the contractor’s work product to a personal vendetta toward the contractor, and even to his family. I was waiting for the pitchforks to come out. In this case, the contractor did not engage on social media, which in my professional opinion, was the appropriate approach to take.
On social media, we believe that we are posting indisputable facts and comments by our “friends” made in support of those facts encourage and strength that belief. In a court of law, your facts do not always end up being determined the facts of the case. A judge/jury, depending on whether you have a bench trial or a jury trial, will determine the facts based on the evidence presented. Both parties have an opportunity to present evidence and it is up to the judge/jury to determine the weight and credibility of that evidence. If you have filed a lawsuit and you are still putting your facts out on social media, you must beware that those are public and can be used against you in the court. The support we receive on social media may falsely inflate the strength of our claims, not allowing us see the reality of outcomes. The inflated sense of strength of a claim can be dangerous because it can (1) prevent the party from accepting a potential settlement option, and (2) should a judge/jury not find for the plaintiff, that plaintiff can be left with nothing.
As we post online, we may be opening up ourselves to claims of defamation. While we may argue that we are just stating our opinion or the truth, a defense in defamation claims, our truth may not be the truth as determined by the evidence presented. The bottom line is that if someone makes a false statement in writing or verbally to a public audience, and that statement has caused harm to that individual, there is a potential claim of defamation.
It is perfectly reasonable to express displeasure with someone’s work and to tell others that you are not satisfied with their work product. It is not advisable, especially if you have filed a lawsuit, to continue to slam the other party and teeter on line of defamation and potential criminal threats. Your posts will likely not help your case. There is a growing area of the law with regard to defamation and social media, which will only continue to grow as our presence on social media increases. Regardless of whether you think you are the truth teller, if you are the defendant in a defamation suit, know that litigation is time consuming and costly to defend.
If you take anything away from this article let it be that you should beware of trying your issues online, particularly if you are filing a court action. You may be harming your position more than helping your case and you could be opening yourself up to claims of defamation. Think before you type.
Heather Melito-Dezan is an Attorney and Mediator who practices in Massachusetts and New Hampshire. Please feel free to contact Heather at email@example.com.