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Social Media and Criminal Law

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How Do Social Media and Criminal Law Interact?

Volumes of legal analysis, commentary and opinion are currently being written about the role of social media in criminal law. Social media platforms such as Twitter and Facebook are relatively new, but their implications in changing how people communicate and express themselves are deep and far-reaching.

This inevitably has implications for criminals and suspected criminals. When judges in criminal trials decide which pieces of evidence to accept, traditionally they have assessed 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 to assess on social media sites. Sites can be accessed by persons other than the user whose profile is depicted. This alone could raise reasonable doubt of the identity of the poster.
  • Reliability: Since photographs can be doctored and written posts can be edited and backdated, it can be difficult for judges to determine 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 derived from social media posts is important enough to the case to merit any potential bias that might arise purely from the emotional reaction of the jurors who witness it. Instructions to the jurors to limit their reactions can be given, but these are not necessarily always followed or effective.

How Can Social Media Lead to a Criminal Charge? 

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.

How Can I Defend Myself Against Social Media Criminal Charges? 

The Fifth Amendment defense is not applicable with social media charges. Though the Fifth Amendment grants citizens the right to protect themselves against self-incrimination, compulsion is a key component in that protection. The court cannot compel self-incriminating evidence from a witness or defendant, but in the case of social media posts, that material was freely posted by the individual. Therefore it cannot be claimed the court compelled the individual to post the incriminating material.

Depending on which state you live in, there are other 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.

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.

Do I Need a Lawyer?

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.

Photo of page author Danielle Winterton

, LegalMatch Legal Writer

Last Modified: 06-24-2018 06:08 PM PDT

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