It seems there is almost nothing people will refrain from revealing about their personal lives on Facebook. While it can be cathartic to use social media as your personal journal, it can also be dangerous and subject you to legal liability if you are reckless. And because it provides a platform for potentially hundreds or thousands of people to view you, it can also appeal to the worst human impulses, including egotism and narcissistic behavior. It can evoke strong emotions where conflict is involved, which can escalate into criminal or civil malfeasance. Here are some examples of social media content you may want to think twice about posting.
Making Criminal Threats
To prove that you are guilty of having made a criminal threat, the prosecutor must prove that:
a. You willfully threatened to (unlawfully) kill or inflict great bodily harm on another person;
b. You communicated the threat to the alleged victim (in oral or written fashion, including digital, electronic, etc.);
c. It was your intention that the statement be understood to be a threat;
d. The alleged threat was so unambiguous, clear, immediate, unconditional, and specific as to convey a serious intention and the impending possibility that the threat would be carried out;
e. The threat actually caused the alleged victim to be in sustained fear for his or her own safety;
f. The alleged victim’s fear was reasonable under the circumstances.
Criminal threats are criminalized under California Penal Code Section 422 PC.
Making Admissions that Make You Civilly Liable
Let’s assume the following example:
Nosy Nick and Ida Inadvertent are involved in a car accident on a busy street. Nick gets out of the car and inspects the damage on his vehicle. Ida exclaims, “You should be more careful when you drive! Look what you did to my car!” Nick is astonished because he could have sworn it was Ida’s fault since she sideswiped him while he was simply driving and minding his own business. The two exchange insurance information. Ida abrasively insists that it is Nick’s fault and he will have to pay for the damage. He responds, “We’ll see about that.” The two part ways.
When Nick gets home, he turns on his computer and runs a Facebook search of Ida Inadvertent. Her profile appears and her Facebook wall is visible to the public. Ida’s latest post reads: “I’m so pissed. I just hit this dude. My phone blew up, I looked down and before I knew it, I took out his fender. [Expletive].” Nick prints the information and saves it. He calls the insurance company to report the accident.
Some days go by and he hears from his insurance representative. Ida’s version of the events (as she relayed them to her insurance company) were completely different from her Facebook wall posting. In fact, she charges that Nick hit her and, thus, is at fault. The damage on both vehicles is such that it is not clear who was at fault. Nick e-mails his insurance representative the wall posting from Ida's Facebook profile admitting that she was at fault. The insurance representatives for Nick and Ida ultimately both determine Ida was at fault.
This is not an uncommon occurrence. And personal injury is not the only context in which this occurs. Many people use Facebook and other social media as a journal of their innermost thoughts and feelings and impulsively publicize admissions or confessions to actions for which they may be civilly liable. By so doing, they are providing evidence that a civil opponent can use against them.
According to California Evidence Code Section 1200(a), hearsay is a statement, made outside of court, that is offered to prove that a particular matter is true. Hearsay is, generally, inadmissible. The case authority and other legal literature explain that hearsay suffers certain “infirmities” that make it inherently unreliable. However, like many other laws and rules, there are exceptions available. One such exception to the Hearsay Rule is “Admission by Party Opponent.” According to California Evidence Code section 1220, evidence of a statement made by an opponent in a legal action can be offered up against him or her. Obviously, the admission of guilt that Ida posted on Facebook would fall under this exception.
Making Defamatory Statements
Issuing insulting invectives and vitriolic remarks against someone in social media or online is certainly nothing new. It is frequently referred to as “trolling.” However, statements otherwise protected by the First Amendment (regardless of their vituperative character) can cross the line into defamatory statements in certain situations. You can be sued for defamation if you:
1) publicized to a third party
2) a statement of fact (as opposed to an opinion) that is false
3) that can be construed as
a) regarding the plaintiff; and
b) which has the tendency to injure the plaintiff’s reputation.
Now, if the plaintiff is a “public figure,” under a famous case entitled New York Times v. Sullivan, the plaintiff has to prove what is called “actual malice,” which means the statement was made with a “reckless disregard for the truth.” It is an elevated standard of proof meant to protect your First Amendment to utter open criticism about a public figure or issue and to foster, generally, the “marketplace of ideas.” However, uttering a false remark about a private person when you know that remark to be false and can harm that party’s reputation can make you civilly liable.
Engaging in Copyright Infringement
In this age of “DYI” (“do it yourself”) videos and other multi-media, using copyrighted media for which you have no license or licensing rights can trigger civil liability under the US Copyright Laws. With software that can easily detect duplicate text or language, it is easier than ever to detect whether someone else is plagiarizing your written content or using something you created without your consent. Plagiarizing content or lifting multimedia without the proper consent can incur civil liability.
Bragging About or Revealing Criminal Behavior
In their youthful bravado, many young people like to brag about their exploits. However, many of these indulgences are drug-related or reveal some other criminality. Be it a theft-related crime, sex offense, posing with illegal firearms, underage drinking, posing with drug paraphernalia (bong, meth pipe, etc.) or some other illicit behavior, you can be sure the watchful eye of law enforcement is not far away. Law enforcement agencies have officers and personnel who monitor social media and scan for criminal conduct. Don’t be surprised if you end up with a letter from a detective if you posted a picture or wall post where you engaged in criminal behavior or owned up to it.
In a Bind? Our Los Angeles Social Media Lawyers Can Help You
With regard to social media civil or criminal liability, the Coimbra Law Firm (San Gabriel Valley social media law firm) represents persons in the following situations:
- Prosecuting a restraining order against a party for harassing you online;
- Defending against a restraining order for alleged online harassment;
- Criminal Defense against a misdemeanor or felony charge, including, but not limited to cyberbullying, criminal threats, stalking, etc.;
- Prosecuting a civil action against a person who has wrongfully accused you of a criminal or civil malfeasance (“Malicious Prosecution,” “Defamation,” “Abuse of Process”);
Our Los Angeles social media law firm is extremely aggressive and thorough in representing our clients.
If you believe you are being investigated for a crime related to social media or you have an issue regarding civil liability for something you did on social media, you can reach our Los Angeles criminal defense law firm and Los Angeles tort law firm at 1-855-325-5245 or Esquire@CoimbraLaw.com. Free consultation may be available.
Nothing in this article or anywhere on this blog constitutes legal advice of any kind. Picture above is featured for illustrative purposes only and is no reflection on the person depicted whatsoever. Attorney licensed in the State of California and, therefore, accepts California cases only.
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