I recently just heard about a case where social media played a huge part. At the 11th hour right before a custody and visitation hearing, one of the parties claimed domestic violence, delaying all proceedings. However, it was not the type of domestic violence you would think. It was fabricated through the use of social media – filters, to be exact, a Snap Chat filter. One of the parties claimed the other party physically assaulted them and even provided photographic evidence to prove there had been an assault. The craziest thing though, the photo that was submitted as evidence was a photo that had been taken in Snap Chat that then had a filter placed on it to make it look the party had a black eye and several other bruises on their face. This photo was then used as evidence further the idea that domestic violence had been committed.
The party who had been claimed to be the perpetrator for one had never touched the other party and fully knew that they had not committed violence against the party that claims they had been assaulted but was curious how the picture came about. Well, it dawned on them, that social media platforms like Snapchat, TikTok, and Instagram all allow for different “filters” over pictures. Snapchat recently put out a filter for use by snapchat users that make it look like a person has been bruised and beaten. This party then took a photo using the same filter to illustrate to the Court that the bruises were the exact same color, size, and on the exact same location of the face. However, because of this claim by the other party that they had been abused, the parties now have to litigate domestic violence, while placing their child custody and visitation case on hold.
Despite the very clear evidence that the photo was faked, and a filter was used to illustrate the injuries, the parties are still having to litigate domestic violence.
The moral of this story is that filters and technology are becoming prevalent more and more into the legal field, but how do we combat that? What are the best ways to keep your social media from hurting you in your family law proceedings?
- Do not disparage your partner or soon to be ex-partner on social media platforms.
- Do not post statements or pictures of consuming alcohol or every time you visit a bar, etc.
- Do not update your relationship status with a new partner during a Court proceeding.
- Do not brag or post about vacations, big ticket purchases, concerts, etc.
- Absolutely make sure your privacy settings are correct.
- Do not speak about your family law judge, your court proceedings, or the attorneys involved in your case on social media.
- Do not write posts or make statements while hurt, upset, angry, or after consuming alcohol.
Although, the tips above are recommended in combating the use of your social media against you, how does one combat another person’s use of social media against them? One particular case comes to mind, United States v. Farrad, 895 F.3d 859 (6th Cir. 2016). This particular case occurred when “concerned citizens” notified law enforcement that Farrad, a convicted felon, was seen carrying posing in a photograph with guns in a Facebook post. The police created a fake Facebook account, befriend Farrad, and indeed witnessed the photographs of three guns in the bathroom as well as Farrad himself posing with the guns. The officer was able to obtain a search warrant and served it on Facebook. The officer received data in response including several photographs that had recently been posted on the account showing Farrad holding what appeared to be guns in the background of his apartment. Because of these photos, Farrad was arrested for being a felon in possession of firearms and tried. He was found guilty. This case was appealed by Farrad on the basis of authentication of the photographs and were insufficient to convict given lack of evidence regarding whether they were accurate or where and when they were taken.
Authentication of photographs has been long used in evidence in Courts. Authentication or proving that the picture is real, accurate, and has not been altered has been a legal theory for quite some time. The Eight Circuit on appeal ruled that the photographs were sufficiently authenticated by circumstantial evidence, including (1) that they were posted on an account that appeared to belong to Farrad, given the name on the account and other details; (2) The photos appeared to show Farrad, his tattoos, and distinctive features confirmed through police investigation; and (3) the lack of any evidence suggesting the photographs were inaccurate or altered.
All in all, the photographs were deemed authentic because Farrad posted them, and they were glaringly fake. On one hand, everyone knows that things posted on social media aren’t the whole truth, most often edited slightly using filters, etc. However, they can often be wildly inaccurate with the use of Photoshop and the ever-growing AI.
I do not have an answer as to how social media filters, photoshop, and the use of AI, will flourish throughout the family law system, only a comment that the use of social media, photoshop, and use the AI are alive and being used throughout the system. We have to wait and see how laws are made and how authentication will change as these uses are brought to light. These issues are going to make things harder for Lawyers and proving what is real and what is fake. All I can say is that hopefully the laws will grow as the use of AI is being brought to the forefront and that I hope that we can determine the authenticity of these photos being presented in our cases so that each party can move forward in their lives and their case.