Last Wednesday, Washington State followed the example of California, New York, Texas, Mississippi, and Hawaii when governor Chris Gregoire signed into law an online impersonation bill, aimed at combating fake Facebook accounts, which can be abused for harassing, bullying, threatening, defaming, or defrauding other people.
The same day, Facebook admitted that of the 845 million monthly active users (MAUs) it had proudly claimed in its IPO, five to six percent are fake or duplicate accounts. That means that Facebook overstated its initial assessment of MAUs by about 42 to 50 million—not a mere rounding error. Facebook’s user agreement prohibits the creation of fake and duplicate accounts; the social network has said it closes tens of thousands of accounts daily.
The existence of millions of fake accounts also begs another, seemingly unrelated, question: Just how real are the real ones?
If you were to solely judge your friends’ life based on their Facebook lives, you’d conclude that everyone is a lot happier than you are. They are rarely depressed or even disgruntled; their jobs are always engaging and interesting; their evenings are filled with perfect sunsets. On Facebook, your friends always have perfect hair.
This phenomenon was described in the paper Misery Has More Company Than People Think, a paper published in the January 2011 issue of Personality and Social Psychology Bulletin. As Slate writer Libby Copeland pointed out in a review of the paper, on Facebook “blandness will not do, and with some exceptions, sad stuff doesn’t make the cut, either. The site’s very design—the presence of a ‘Like’ button, without a corresponding ‘Hate’ button—reinforces a kind of upbeat spin doctoring.”
This phenomenon makes the Facebook experience less authentic and trustworthy, but that’s not the biggest problem. Like fake accounts, faking it on Facebook has tangible and unexpected legal repercussions.
Earlier this year, commercial litigation attorney Brian Wassom predicted on Mashable that we’d see increasing use of social media evidence in courts. Evidence obtained from Facebook, MySpace, Twitter, LinkedIn, and other social media platforms has already been used in a multitude of cases. Some of the evidence obtained was publicly available and not hidden by any privacy filters, but in some cases, users of social media platforms were asked to provide login information as part of the discovery process.
The increased use of social media evidence is especially problematic in cases where perception can undermine a claim, for instance, in disability or workers’ compensation cases. In deciding whether or not to approve or continue a disability or workers’ compensation claim, insurance companies are generally looking for evidence of what the claimant is able to do physically and whether or not they are currently able to work for money, or are, in fact, actually working for money.
Social media evidence can easily be misleading and not just because we all try to be more interesting, hip, or thoughtful than we really are.
Social security disability lawyer Jonathan Ginsberg frames the problem this way: “Remember that the main issue in most Social Security cases is whether you have the capacity to perform simple, entry-level, low-stress, sit-down type of work. Now, take a look at your Facebook profile.”
Lawyers presenting social media evidence in court may argue that that people are more likely to be honest and unguarded when they think they are sharing information with friends than they would be with investigators or doctors who are evaluating their injury or disability.
But there’s no reason to believe that people filing disability or workers’ compensation claims are likely to use Facebook more honestly than anyone else.
If you were disabled and constantly in pain, wouldn’t it be lovely to post pictures of yourself walking on the beach or dancing at your cousin’s wedding—even if that beach walk only lasted five minutes and sent you into paroxysm of pain, and even if that wedding dance didn’t last a full song? Wouldn’t you rather profess to be “looking for work” than admit you were living off disability?
As Jonathan Ginsberg notes, the visual nature of what we post on Facebook increases the chance of misinterpretation: “What really is a problem with disability claimants is that they put a picture up on Facebook that shows a moment of joy in their life. It may have been the only moment of joy that they had that day, or they had a horrible day the next day because they tried to do something active for a short time. They can explain it. Their family or friend can explain it. But a picture is worth a thousand words … sometimes those words say the wrong thing.”
The way we present ourselves on social media networks is not a reliable indicator of what is happening in our lives—precisely because we think we’re among friends.
Even when there are no legal objections to using evidence obtained from social media, the evidence should be considered inherently untrustworthy and be given little weight, unless the evidence corroborates other sources of evidence. In cases where approval of a claim requires a review of a person’s subjective quality of life, social media evidence should be treated with even more circumspection.
Yes, we’re all fakes on Facebook. But it shouldn’t hurt us in court.
I discuss this issue in more length, with arguments pro and con, in The Use of Social Media Evidence in Workers’ Compensation and Disability Claim Cases (.PDF), a briefing paper written for Kraig Baker’s Digital Media Law class.
Peter Luyckx (@peterlux) is a Digital Content Strategist and an MCDM graduate student. The opinions expressed in this post (and the briefing paper above) are entirely his own.
Infographic by Elizabeth Wiley.