Volumes of legal analysis, commentary and opinion are currently being written about the role of social media in criminal law. Social media platforms like Twitter and Facebook are relatively new, but their implications in changing how people communicate and express themselves are deep and far-reaching.
This eventually has effects for criminals and suspected criminals. When judges in criminal trials decide which pieces of evidence to accept, traditionally they have assessed factors like authenticity, reliability, prejudice, and relevancy. These measuring tools are not always easily applied to content generated by social media platforms.
- Authenticity: Verification of identity can be difficult on social media sites. Sites can be accessed by persons other than the user whose profile is shown. This alone could raise doubt regarding the identity of the social media poster.
- Reliability: Since photographs can be doctored and written posts can be edited and backdated, it can be difficult for judges to determine the reliability of social media posts.
- Law enforcement officers can sometimes obtain this information through surveillance or interaction with the social media site that hosts the profile.
- Relevancy: Users often post playful images of themselves that are intended as jokes. These might be along the lines of flashing gang symbols or posing as a pin-up model.
- These postures are in danger of being used as evidence of character defects and flaws. Judges must determine the relevancy of every piece of social media evidence before admitting it to trial. This means weighing the value of the evidence to the case against the potential harm it could do to the person’s reputation.
- Prejudice: Judges must also decide if evidence taken from social media posts is important enough to the case to cause biases that might arise from the emotional reaction of the jurors. Instructions to the jurors to limit their reactions can be given, but these are not necessarily always followed or effective.
Several kinds of criminal charges can arise from social media posts. Many of these are sexual in nature. Unwanted social media posts depicting heavily sexualized content can lead to investigations of sexual harassment, indecency, exposure, and creation and/or distribution of child pornography. Revenge porn sites can be grounds for criminal charges if malicious or criminal intent can be proven.
Other kinds of violent threats can be construed as evidence if the events mentioned later actualized. Photos, tags, and videos of any kind can place individuals at crime scenes during the time of the crime or implicate their involvement in a crime. Photos or videos of incriminating items (such as drugs, illegal contraband, money used in crimes, or weapons) may sometimes be used as evidence in court.
Romance scams are often accomplished through the use of social media websites. Here, the scammer pretends that they are romantically interested in their victim. Once they develop a relationship with the person, they might request for their information, which is then used to accomplish identity theft, online purchases, and other activity.
Military romance scams are a specific type of romance scam. In these types of scams, the scammer poses as active or military personnel. They then make connections with a victim, who is led to believe that the person is serving the country as a service person.
After gaining their trust, the person may tell stories that they are on deployment and need money or goods sent to them. In this way, the person is able to basically steal money and information from the victim. This type of scam can involve other legal issues as well. For instance, it is also a federal crime to pose as a military person when not truly serving in the armed forces.
Depending on which state you live in, there are various defenses against criminal charges that derive from social media content.
One option is to examine and analyze the terms of service in the user agreement of the social media site that hosted the allegedly criminal content. One famous case involved a mom who set up a fake social media account and pretended to be a boy who had a crush on one of her daughter’s peers.
The online harassment escalated until the targeted girl hanged herself. The mom was found guilty, but the verdict was later overturned because of discrepancies of use in the terms of service agreement.
Another possible defense is that of coercion. If the person is forced to post certain materials on social media under the threat of harm, it might be used as a defense in court. An example of this is where a person is threatened with physical harm if they do not post a gang-related picture on the website. Here, the court might review the situation and determine if the defense is available to the person.
Due to the newness of this area of law, and the unique circumstance of each case, a criminal lawyer is the best source for crafting a defense specific to the charges.
Criminal charges are serious matters. Even a series of seemingly minor misdemeanors can lead to jail and prison sentences. Sex crimes carry a particular stigma for those convicted of them and can have long-lasting devastating effects on a person’s life.
It is best to secure a highly competent criminal defense lawyer knowledgeable in cyber law to advocate on your behalf and represent you should the case go to trial.