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Article: April 2015: Trial Practice Update

April 01, 2015
Business Litigation Reports

Admissibility of Third Party Postings on Social Media Pages. This article focuses on whether statements posted by a third party on a person’s Facebook “wall” or similar social media page are admissible for their truth against the person on whose page they appear.

Facebook posts often embed or convey statements made by other individuals, usually by the use of a username, hashtag, or @ symbol followed by the other author’s text (“third party posts”). Users of Facebook have a “wall” wherein other users—typically Facebook “friends”—can post content to the user’s “page.” This content then becomes visible when a person visits that user page and it is incorporated into their online profile. Other users can even “comment” on the post, and these comments can also become visible to the user’s other visitors. The user retains ultimate authority over posted content, however, and can delete and “curate” the online profile as desired. Because the posts are out-of-court statements, their admissibility raises hearsay issues.

Some situations may present a non-hearsay basis for admitting third party posts. For instance, the proponent of the evidence might offer a post to show that the party on whose wall it was posted—or the poster—was on notice of or aware of the content of the post, regardless of its truth. The post could also be offered to show the poster’s state of mind, which qualifies as a hearsay exception under FRE 803(3).

Where the post is offered to prove the truth of the matter asserted, however, it constitutes inadmissible hearsay, unless an “exception” applies. One commonly used hearsay exception, party admission, does not apply to this example, because the party against whom it is being offered did not author the statement. A potential avenue for admission is as an adopted admission. Federal Rule of Evidence 801(d)(2)(B) treats statements that might otherwise be hearsay as non-hearsay when the statement is offered against the opposing party and “is one the party manifested that it adopted or believed to be true.”

Although courts have not addressed the issue of adopted admissions in the social media posting context, courts have addressed the issue of adopted admissions in the context of forwarded emails. The Ninth Circuit in Sea-Land Serv., Inc. v. Lozen Int’l, LLC., 285 F.3d 808, 821 (9th Cir. 2002) held that when a forwarding party commented on a forwarded email and “incorporated and adopted the contents of [the]original message,” the forwarding party “manifested an adoption or belief in [the] truth” of the information contained in the original e-mail,” rendering it an adoptive admission. Lozen reasonably suggests that merely forwarding an email is insufficient to signify an intent to adopt the statements therein, and that some additional action endorsing the message is required before it can be offered for its truth against the forwarding party.

Emails and social media posts differ in ways that can impact the analysis of intent to adopt. For example, while emails cannot typically be deleted remotely by the sender from the recipients’ email boxes, a Facebook wall owner retains control over a post and can delete it without the poster’s consent. Thus, by allowing third party posts to remain visible on the wall, the owner is potentially expressing his adoption of the statement through inaction. Courts have recognized that silence can be an adoptive admission, and thus the “inaction” of allowing a post to remain up could be viewed as evidencing an intent to adopt. See United States v. Joshi, 896 F.2d 1303, 1311 (11th Cir. 1990) (“First, the statement must be such that an innocent defendant would normally be induced to respond. Second, there must be sufficient foundational facts from which the jury could infer that the defendant heard, understood, and acquiesced in the statement . . . The first criterion, [] is of particular relevance in cases involving silent acquiescence.”). Facebook and other social media posts typically communicate to a much larger group of people than an email sent to discrete group. This willingness to allow the statement to be seen by a much larger group could indicate a lack of concern on the part of the owner with being associated with the contents of the post.

The circumstance surrounding the posting and its retention will also factor into an adopted admission analysis. For example, the extent to which the owner monitors the content of the wall, as well as the length of time a particular post has been up, would likely bear on whether inaction manifests an intent to adopt a third party post.

Although courts have not yet issued opinions on the admissibility of third party posts, courts will face these and other novel evidentiary questions as social media use continues to proliferate. Prior decisions will provide some guidance on the issues, but courts must also recognize that unique characteristics of social media will require courts to adapt traditional evidence rules.