Spoliation and Social Media

IANAL, but I am a bit of a junky and can follow a certain amount of legal argument.  I found this story today:

Think Before You Facebook: Emerging Social Media Spoliation Sanctions

Actually, it should be titled, “think before you (delete) Facebook.”

If you can’t bear to read legal argument, here’s the layperson’s (IANAL) understanding:

If you delete ANY social media CONTENT, or ACCOUNTS, once it becomes possible that the content or account is “evidence,” you can be charged with spoliation.

Spoliation

<snip>

A spoliator of evidence in a legal action is an individual who neglects to produce evidence that is in her possession or control. In such a situation, any inferences that might be drawn against the party are permitted, and the withholding of the evidence is attributed to the person’s presumed knowledge that it would have served to operate against her.

It is possible that lay people can claim ignorance of the law. It is known that lawyers cannot. I would bet that professional social media managers fall closer to lawyers on this point than they do to lay people.

Plan A:

  • Don’t pin or post anything that can be used against your clients. (Duh.)
  • Make sure your clients are not pinning or posting anything that could be used against them. This should be addressed in the Social Media Policy for the account.
  • Make sure your clients know not to delete content or accounts if they get letters from lawyers. Again, this should be addressed in the Social Media Policy.

Plan B:

If something on an account (Facebook is the most commonly cited, but the law doesn’t care about platform) could ever be used against a client, take it down now, before there is any hint or suggestion of a lawsuit.

Once the lawyers have sent their letters, leave it alone.