As I wrote in my blog “Liability & Lawsuits: Strategies to Protect Your Family Business,” litigation of any type can be incredibly disruptive, time-consuming, stressful, expensive, and, of course, when results take a turn for the worse, devastating. The observations I wrote about in September 2023 remain every bit as relevant today as they did then. And while I wrote about strategies to avoid lawsuits and to protect your family business, the impact of social media in litigation should not be ignored.
Social media can impact litigation in numerous ways, including giving rise to causes of action, generating damaging evidence, escalating costs, and escalating conflict between parties.
Potential Claims
First, social media can create potential causes of action and claims which might very well end up in litigation. For example, claims for defamation or invasion of privacy might arise when social media content is used to defame or disparage an individual or a company. Defamation is a false publication that injures a person’s reputation. A cause of action for defamation consists of five elements: (1) a false and defamatory statement; (2) about the plaintiff; (3) published without privilege to a third party; (4) with fault of at least negligence on the defendant’s part and (5) that was either defamatory per se or caused harm to the plaintiff. Id. Written defamation, such as a statement on social media, is also known as libel.
Unfair and deceptive trade practices might arise when a person, in the course of their business, vocation or occupation, “[d]isparages the goods, services, or business of another by false representations of fact.”
Trademark Infringement and Unfair Competition
Claims for trademark infringement and unfair competition may also arise from misuse of social media. Unfair competition ordinarily consists of representations by one person, for the purpose of deceiving the public, that his or her goods are those of another. It may also extend to “unfair commercial practices such as malicious litigation, circulation of false rumors, or publication of statements, all designed to harm the business of another.”
Moreover, the use of social media may cause a person to be dragged into a court outside of the county or even the state where the person is sitting when typing a social media post, so caution is recommended.
Potential Evidence
The use of social media may also give rise to evidence that may hurt a person’s standing before a judge, a jury or any other finder of fact such as an arbitrator. In addition to potentially creating a cause of action, social media posts, when properly authenticated, can be used as evidence of motivation, opportunity, statements against interest, admissions, and other evidence of bad conduct. Social media posts can also be used to demonstrate a person’s background, qualifications, employment history, representations to the marketplace and other personal and professional qualifications. In this regard, what a person may say in court, in deposition, or in a pleading or motion, may be substantially different from what that person may have said in a social media post. These contradictions can be used to undermine credibility.
Potential Escalation of Costs
Because imprudent use of social media can create causes of action and be used as evidence in litigation, the costs and expenses of litigation can increase. It should go without saying that defaming another person on social media can result in expensive litigation. But engaging in imprudent use of social media can increase discovery costs and can also lead to embarrassment on a witness stand.
Potential Escalation of Animosity
Finally, it can be observed that imprudent use of social media, or taking your dispute public, can have a counterproductive result through the hardening of positions and the escalation of animosity. While a lawsuit may not have received much if any attention when filed, once a party takes the dispute to social media, the publicity that social media may generate may backfire. This is because both parties may dig in their heels and seek final and conclusive resolution in Court.
Conclusion
Social media is everywhere and it has affected our lives for good and bad. It may also impact litigation by creating causes of action, by providing evidence that can be used in litigation, by escalating costs and expenses, and by escalating animosity between the parties. One angry key stroke to social media can have very real consequences.
For more information, or to seek counsel from our Litigation practice group, please reach out to request a consultation or call us at 216-696-1422.
