Snap! And You Miss It: The Legal Risks of Snapchat and Disappearing Evidence in the Workplace

 
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Snapchat and other photo-sharing apps have redefined how users—and employees share information. Due to the ephemeral nature of Snapchat photos and videos, employers may face hurdles in identifying and investigating workplace misconduct. This article examines how employers can navigate employee issues in an era of “disappearing” social media.

It is almost hard to imagine that barely two decades ago, we used cameras with physical reels to record our memories.  Today, photo reels, and to some extent, even standalone cameras are remnants of a bygone era.  In their place are a multitude of online photo-sharing platforms, like Snapchat, Instagram and Facebook.  Printed photos have turned into “live feeds.”  Scrapbooking has given way to Facebook timelines.  And photo albums have morphed into 24-hour Snapchat “stories.” 

Photo-sharing has increasingly become ephemeral, and fleeting, which is not always a positive from an employer’s perspective.  As with other forms of social media, platforms like Snapchat can be a prime tool for inappropriate conduct, like harassment and bullying.  More worryingly,  the disappearing nature of photos on such platforms means it may be more difficult to detect, address, and rectify such improper conduct, and indeed use such evidence in court. 

The Curious Case of the Disappearing Photo—The Advent of Snapchat

Snapchat has gone from being a relatively unknown app in 2011 to now exploding on the internet.  Like its social media counter parts, Instagram, Facebook and Twitter, the app has commanded worldwide attention.  It now boasts over 187 million users.  A 2018 Pew research poll makes clear that a majority (63%) of Snapchat users visit the platform on a daily basis.

Part of what makes Snapchat so appealing to its users is the “disappearing” nature of its photos.  The app allows users to post messages that last for only 10 seconds before they disappear.  The app also erases pictures and videos users upload within 24 hours.  Moreover, the messages “auto-destruct,” meaning that unless one takes a screenshot, the content disappears in a matter of seconds.

Disappearing images are by no means limited to Snapchat.  Facebook and Instagram have launched their own version of “stories,” which also allow users to post 24-hour photos and videos that disappear. 

Snapchat as a Source of Evidence

Given the ever-presence of apps like Snapchat, we can expect that harassment and inappropriate conduct, which may have previously extended as far as email and text messages, can now occur “off-the-clock” virtually anywhere, and may be limited to 10-second intervals.  What’s more, employers may see claims attempting to hold them liable for the conduct of their employees on social media.

Troublingly for employers, the fleeting nature of Snapchat photos can make such behavior hard to detect.  When employees post harassing or bullying social media posts on Facebook, that data can be saved.  On Snapchat, it may not.  As a further complication, when an employee saves a Snapchat photo or “story” by screenshotting the evidence, the app directly notifies the photo poster.  This can be particularly difficult for litigating and addressing alleged workplace harassment when the Snapchat photos are the only source of evidence. 

Breaking Through the Filters—Using Snapchat Evidence

Does this mean there is no hope of using Snapchat evidence in in investigations and in court?  Not entirely.  To the contrary, Snapchat has proved to be a compelling source of evidence for juries in certain instances. In July 2016, a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat.  Jurors viewed screenshots of the Snapchat video during the trial.

Employers can similarly utilize Snapchat evidence to their advantage.  For example, a Snapchat photo or “snap” can be a useful defense tool for an employer whose employees have been accused of harassment.  A snap may show the timing of the alleged harassment, and establish a consensual relationship between the alleged perpetrator and victim.  Snapchat’s “Geofilter,” which marks the user’s specific location, may also be used to trace the exact location of alleged illegal conduct, which can prove an important piece of evidence in litigation. 

While several courts have been receptive to Snapchat evidence, some courts have refused to admit Snapchat evidence unless the individual taking the photo is willing to testify as to its authenticity.  Other litigants have reached out to Snap, Inc. itself to gain user information, but per their guide, Snapchat refuses to participate in any lawsuit, save for certain exceptions (such as imminent danger.)  Given the potential hurdles in obtaining and admitting such evidence in court, employers should consider all potential sources of evidence in investigating workplace misconduct.  

Best Practices for the Future Employer

The use of photo-sharing apps is ever-present and unlikely to decrease.  In this era of constantly uploaded and disappearing content, employers should consider revisiting their social media policies.

  • If you are conducting a workplace investigation, consider using other forms of corroborating evidence, like witness interviews.  If you cannot recapture the snap, you might ask witnesses for a detailed description of the contents, time and date of the alleged snap.  Also consider taking interviews of people who directly witnessed the conduct, on Snapchat or otherwise.

  • Train employees and managers on handling investigations when complaints involving social media do arise. 

  •   Include examples of inappropriate workplace conduct when updating your social media handbook policies.

 

Cassie Peterson