I have been increasingly hired as a Social Media Expert Witness because more and more of life and business is involved in social media one way or another. Companies are trying to connect with customers, build audiences, and promote their products and services on Facebook, Instagram, X, YouTube, Pinterest, LinkedIn, TikTok, and more. Individuals are spending hours per day connecting with family and friends on social platforms, and also going to them for entertainment, and for career advancement.
With all the activity conducted on social media, it is not surprising that issues crop up involving social platforms. Trademark infringement, defamation, impersonation, copyright infringement, and other torts are happening online with involvement in these platforms. When parties sue one another for these things, the extent of exposure can factor into how severe courts may determine the issues to be. Social media activity may also indicate intentionality in these issues, too.
For an issue such as trademark infringement, one issue that determines how severe the infringement is would be how many people were exposed to infringing marks or marks used in an inappropriate or confusing context. The volume of social media posts and how many times they have been seen and interacted with by the public can demonstrate levels of impact in infringement or defamation cases.
The larger social media platforms each have their own analytics reporting systems, and also native metrics in some places, such as “likes” or “reposts” or “shares”. Complexities can include key differences between the various platforms’ definitions and methods for determining metrics. For instance, a view of a video in YouTube is counted when a video is viewed for a minimum of 8 seconds. On Facebook, Instagram, and TikTok, it is counted when a video has been viewed for a minimum of 3 seconds. On Vimeo, a view is counted from the first point at which it begins to play.
In cases where the social media involved comprises hundreds and thousands of posts, it may be necessary to use programmatic systems to survey, collect, and account for the social media involved in a case. Depending on the needs of the case, I have manually surveyed and documented social media, and I have also done so with tools and custom-made scripts.
In some cases where analytics are unavailable, such as if information has been lost due to time passing, or when data requested through discovery is not forthcoming, it may be possible to estimate metrics or interpolate them based upon other public-facing data and industry statistics. For instance, if one can view how many times an Instagram or Facebook post has been liked, one may be able to calculate a good estimate of the total number of times it would have likely been viewed based in part upon the total number of followers of the account that posted it.
Sentiment analysis is another area where programmatic algorithmic processing software may be necessary in order to determine how the public is responding to online media and topics. Analyzing the language, context, emojis, and other criteria can help determine whether people consider something to be positive, neutral, or negative — as well as more specific emotions like when people consider something humorous, or it inspires them to feel anger, sympathy, or sadness.
Occasionally one may also obtain good statistics from other third-party intelligence tools outside that of the social media platform. Ancillary statistics can also include how much user traffic is referred to a website from links posted on a social media account.
Social media advertising is another source of potential exposure and metrics in cases. Such ad campaigns can have unique demographic or content targeting settings, and typically will have performance reports from which various observations may be drawn.
If you have a case where social media plays a part, you may benefit from involvement with an expert. I have background going back many years in managing social media accounts on behalf of clients, and also in working as an expert witness on cases involving multiple social media platforms.
Contact me to explore if there may be a way that I can assist you on your case.
