“It was a show. A bad show, but it was a show.”
— Heather Martin
“We were going for shock value.”
— Mike Martin
The legal system reacts slowly to technological change. State legislatures and Congress have to act before new laws can be passed. Committees must meet before new evidentiary rules are adopted.
Cases must make their way up through the lower courts to appeals courts in order for landmark rulings to be made. And all the while, the technology continues to speed ahead and develop.
Modern social media has been around long enough, though, that we’ve seen consistent examples of how posts, tweets, videos and pictures have come back to haunt people — sometimes years later — in the courtroom. Yet another example, this time in the realm of YouTube and child welfare, arose last week.
The case involves a husband and wife in Maryland, Mike and Heather Martin, who thought that they had found a profitable niche with their YouTube channel. Their videos have now all been made private, but at the height of the channel’s popularity they had 750,000 subscribers and their videos had been viewed 176 million times.
According to news reports, the videos featured the father playing pranks on his five children along with the help of his wife, the children’s step-mother. The videos frequently featured the couple berating the children, swearing at them or, in one case, allegedly causing harm to the youngest child.
Part of a much larger genre of ‘prank videos’ that have become popular on YouTube, the channel in this case, known as ‘DaddyOFive’ had a huge following and regular advertising income.
One person who was not amused was the biological mother of the two youngest children. Having been alerted to the videos and watching some of them, she hired legal counsel and initiated court action to gain custody of her children. After being made aware of the nature of the videos, the Frederick County Circuit Court granted emergency custody of the two youngest children to their mother. That case remains pending.
It’s certainly not the first time that a social media posting has backfired on someone in court. In May of 2015 an Indiana court permitted the admission of deleted social media posts by a criminal defendant.
The witness who testified about the posts stated that she was the other person in them and that the photos showed the defendant holding the weapon that was used in the crime he was being tried for. The Indiana Court of Appeals later upheld the man’s
conviction. In 2011 a Michigan man was charged with polygamy when he posted pictures on social media of both of his families.
The end result can be the same in civil actions too. Several years ago a young man brought a lawsuit against his local school district alleging that he suffered a brain injury when his high school football coach made him go back into his game with defective equipment.
But by the time the case had come to trial, the other side presented printouts of his social media accounts, which now showed pictures of him partying and drinking at college. The jury saw both his medical evidence of injury and the evidence of his behavior on campus.
Social media experts say that these cases are further reminders of the need to be mindful of what we post online (or write in a newspaper column), particularly for young people who may not have the benefit of a long-range view of the consequences of their online presence.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.