A person who deletes something of evidentiary value in bad faith can be prosecuted in court. Any action that is deemed by the court to spoil evidence can lead to potential litigation. Not many people are aware that deleting a social media account can also be considered an act to intentionally spoil incriminating evidence.
Here we will discuss in depth the implications of deleting social media posts or accounts in a divorce or child custody case.
Spoiling Social Media Evidence
In the context of family law, both partners have an obligation to preserve evidence that may implicate them in a violation of a court order or a joint parenting agreement. This responsibility extends to preserving digital evidence, including social media posts.
Consider a simple situation: a father is required to consult with the mother of his child before taking the child to potentially risky areas, such as a swimming pool or a water park. The father does not consult the child’s mother about a trip to a water park, and posts pictures on his social media account showing him having a wonderful time at a water park with his child.
The mother gets wind of this and files a case in court, as the father has violated a clause in the joint parenting agreement. In such a situation, if the father deletes the Facebook post he can be sanctioned for spoiling evidence, as well as for violating the parenting agreement.
A person is legally held responsible and sanctioned for destroying evidence in the event that:
- the person was responsible for preserving the evidence,
- the person deleted or destroyed the evidence, and
- the other parent could use the evidence in court to prove that the person has violated an important clause of the parenting agreement or court order.
In the example given above, the father would be sanctioned for spoliation of the evidence that could incriminate him in court. Thus, if you believe that you have posted something that could incriminate you in court, you should never delete the post or the account.
The consequences for deleting an incriminating social media post or account can be more serious than if the evidence were preserved in court. What this means is that you need to not only be careful about what you post on the internet, but also what you delete.
A professional family attorney can instruct his or her client to use discretion when posting on social media. The family lawyer can advise the client of legal ramifications of social medial posts as well as third-party comments on the post. Following the advice of the family attorney can go a long way in ensuring that no action is taken, including spoiling digital media evidence, that can result in a sanction against the client.