6 Common Legal Issues Around Website Content

A well structured, informative website is an essential element of modern business. However, many organizations don't fully appreciate the legal responsibilities that accompany public communication through an official company website.

Is there a difference between data retention and data preservation? The terms retention and preservation are often treated as synonyms in day-to-day language but they aren’t the same thing.

Digital content (like web pages, Facebook posts, and tweets) is increasingly being submitted as evidence during legal matters—but it isn’t always being admitted by courts. As with any other form of evidence, digital evidence needs to meet a certain standard in order to be deemed admissible—and in many cases this comes down to how the evidence was collected and authenticated. If the collection and authentication process wasn’t handled correctly—and the method employed didn’t prove authenticity beyond any reasonable doubt—the evidence typically would not be accepted.

Traditionally, proving the authenticity of a piece of digital evidence could be tricky, especially if opposing counsel was determined to keep it out of evidence. Legal teams would have no other option than to spend significant time and resources on providing a sponsoring witness who could testify to the authenticity.

As with other social media platforms, like Facebook and Instagram, compliance and legal professionals often need to archive a Twitter account for official use.

When it comes to investigating potential fraud, modern social media platforms can be a tremendously useful resource. The reason for this is simple: a lot of us are active on social media these days—and we tend to share more than less. At the end of Q1 2020, Facebook reported 1.73 billion daily active users and 2.6 billion monthly active users, with around half of all social media site visits in the United States going to Facebook. Add Instagram’s 500-million daily active users—not to mention the 500 hours of video uploaded to YouTube every minute!—and you’re left with a lot of potential digital evidence.

As with other social media platforms, like Facebook and Twitter, organizations often need to archive their official Instagram accounts. In the public sector, this is usually to satisfy FOIA and Open Records recordkeeping requirements, while in the private sector, it is generally in preparation for a regulatory audit or legal matter. One recent example of a lawsuit related to a company’s use of Instagram is that of Teami, which was accused by the FTC of misrepresenting the health benefits of its tea.

Every November, Oxford Dictionaries announces its Word of the Year (WOTY). And back in 2015, Oxford Dictionaries announced a WOTY winner that had many linguists throwing up their hands and proclaiming the end of human civilization. The Word of the Year was revealed as 😂. To be clear, the WOTY was not the word “emoji”; it was the actual Crying From Laughter Emoji.

With so many people active on social media these days, it’s hardly surprising that posts and comments on platforms like Facebook and Twitter often feature prominently during legal matters. This means that legal professionals have an obligation to protect relevant social media data from spoliation, but the challenges that come with these modern information sources extend far beyond willful destruction of evidence.

No case better illustrates the risks of social media spoliation than Lester v. Allied Concrete Company. The plaintiff had lost his wife in a tragic vehicle accident and was suing for wrongful death. Unfortunately, some Facebook photos came to light that his lawyer was afraid would prejudice the case, and he consequently told his client to delete them. “We do not want blow ups of other pics at trial,” an email from the law firm read, “so please, please clean up your Facebook and MySpace!”