What is a “like” in the world of social media? For Evidence law purposes, does “like” equal “approve” or “I agree?” And what does it matter? Because if “like” translates into approval, it becomes an adoption of the original message by the “liker.” And if that person is ever the party to litigation, does this become a party opponent adopted admission?
The concern is real. As Professor Dan Tilly notes,
Facebook is no longer alone in emphasizing a “like” button. Today, most social media sites utilize “like” devices for their user communities. Twitter, Instagram, LinkedIn, Tumblr, YouTube, and a multitude of other social sites now employ a “like” button in one form or another. LinkedIn’s “like” button is practically identical to Facebook’s, with the exception of an inverse thumbs up. LinkedIn also places the button ahead of options for users to comment or share content posted to its site. Meanwhile, Twitter, Instagram, and Tumblr utilize a heart symbol placed immediately below posted content.
After surveying the pre-digital law of adoptive admissions, and emphasizing that context is everything when deciding whether adoption was intended and manifested, Tilly notes the digital dilemma:
In the lexicon of online social media, the word “like” conveys no universal meaning. It embodies an array of emotions and potential interpretations – many of which are often utterly incongruent. In the social networking realm “like” is a term of art that may convey approval, support, or empathy in some contexts while demonstrating sorrow, dismay, or even dislike in others.
Tilly not only analyzes the dilemma but offers suggested tools for deciding what “like” actually conveys. For example, “[e]valuating “likes” in the context of comments to the post “liked” assures accuracy in determining whether the “like” adopted the post or merely suggested another, lesser intent.”
What is the upshot? The rules have not changed but novel forms of expression require a more comprehensive analysis. Tilly’s work moves the law of evidence well into the digital age, and is essential reading for Evidence theorists, litigators and judges.