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What To Do When… You Are Posting Online.

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WTDW Podcast | Episode 56: What To Do When… You Are Posting Online.

What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.

Jackie Critzer 0:29
Hi, welcome back to Critzer Cardani’s podcast here in Richmond, Virginia. I’m Jackie.

Scott Cardani 0:34

I’m Scott. Jackie, what’s on the docket for today?

Jackie Critzer 0:38
What To Do When… You Are Posting Online.

Scott Cardani 0:43
Whoo. Hot Topic.

Jackie Critzer 0:45
More broad topic. Right.

Scott Cardani 0:46
Yeah… broad topic. Yeah. So Jackie. I think one of the biggest things people don’t realize is that when you post anything online words, pictures, thoughts, videos. Once that’s on the internet, it really never leaves the Internet.

Jackie Critzer 1:05
The digital footprint really isn’t erasable. It can. It can be buried, but not really erased, right?

Scott Cardani 1:11
Yeah – It’s like Snapchat, everyone thinks Snapchat because you snap and it goes away. It’s gone. But I’ve been in rooms watching police on case just watch the Snapchat roll by and taking videos as they need to. So you know, it. It’s a misnomer, and a real naivety to believe that you can post something online and even like, is it apple? Now that has a thing where you can erase your post? Oh, yeah, the text. I mean, that may or may not work. I can’t say it doesn’t work. But my point is, once you put it out there, it’s usually out there and all somebody has to do a screenshot at capture it. It’s there for life.

Jackie Critzer 1:46
Well, so then the next question is, when you do post something thought picture video, anywhere? Let’s just broad, broad Facebook, Instagram. Okay. Do you have any sort of reasonable expectation of privacy at that point? I know that sounds like kind of a dumb question. But if I post something on Facebook, and I have and I post it to friends only. Okay. Am I it? Is it reasonable that I have privacy?

Scott Cardani 2:15
My answer is no. I don’t think it’s reasonable at all. I think it’s silly to believe that. Even if your post if I’m just posting a picture to you. I don’t I think once I put my thing out on Facebook, I know, because their agreement says that they’ve looked at it and everybody in their buildings looked at it. And same thing with Twitter or x now or whatever it is. We know that social media companies certainly are scanning every single thing you put out there. So if you think you’re using a social media app, and you have a reasonable expectation of privacy, I would say you’re not thinking correctly because you don’t. Now we go to a text message. If I text you something, is there a reasonable expectation of privacy? I would say? More likely, I think that’s an okay expectation.

Jackie Critzer 3:06
I don’t know.

Scott Cardani 3:07
I still wouldn’t trust it. I’m not saying I trust it. I’m just saying, Is it a reasonable person’s expectation that they would, if I sent you a picture, it’s going to you. And that is that private?

Jackie Critzer 3:20
Well, Finn, so this goes back to some of the things we’ve talked about. But it’ll also lead into other things. One of the things we’ve talked about is when your teenager is in or anyone really is in receipt of pictures, let’s let’s not deal with it being underage. Let’s let’s it’s college students, okay, let’s use that example. They’re college students, they’ve received pictures from boyfriend, girlfriend, or maybe someone who wants to be a boyfriend or girlfriend.

Scott Cardani 3:45
And these are usually nude, we’re talking about unfortunately.

Jackie Critzer 3:47
In some state of undress, right? In some, okay? And then you are your relative, your person who’s the receiver of these photos or videos, then disseminate them or publishes them or send them to a friend or friends. Is that I mean, what are we?

Scott Cardani 4:07
Yeah, that really gets into all these things. Um, it really is a factual contextual analysis, quite frankly. And, you know, one of the things that’s popped up here in Virginia recently is the delegate who’s running who had a porn site with like, I guess it’s 5700 subscribers and the things that she did online got put out to the full public. And I guess her constituents that is by somebody else. And I don’t know that we know that guy was a subscriber and not a subscriber. Honestly, we have no idea I don’t anyways, and none of the reports I read had that in there, but…

Jackie Critzer 4:48
Well, I think I’m not even familiar with what site that she had posted her video so we just I think what I know at this point is that she posted videos, to a site somebody He took those same videos that she posted and then reposted them somewhere else. Is that right?

Scott Cardani 5:05
Yes. I mean, that’s the gist of it. It was on a definitely on a social media platform. Okay. I would consider a porn type site.

Jackie Critzer 5:16
Okay was on. It wasn’t was it? Was it where other people also did the same thing?

Scott Cardani 5:21
Yes. Okay, for sure. From what I can tell. Yeah. And it was, from what I understand it was a kind of a paid subscription kind of thing where people could come on to the site and pay for a subscription to view that stuff. I don’t know, if it generally had an open forum where you didn’t have to pay I have no idea about all that.

Jackie Critzer 5:39
And so then, did she or does anyone posting on such a site, have a reasonable expectation that their posts, videos, pictures or whatever of themselves that now now we’re not even talking about someone else sort of it being sent to someone but you personally posting it in a in a forum where other people can see it with on purpose? That’s the intent of posting it wherever it’s being posted? Is there a reasonable expectation number one, that that’s not going to be reposted? Maybe it’s in the the agreement? You know, when you sign on to a site? Maybe that’s part of the agreement? We all agreed not to do that? So I don’t know. I mean, that’s that’s the whole topic, what we don’t know.

Scott Cardani 6:18
Well, and that’s the biggest issue is, do you really believe that you have an expectation of privacy? I mean, in all honesty, I wouldn’t. I wouldn’t believe that, I wouldn’t think if I’m posting something on it. For instance, say I message somebody in Facebook video that I didn’t want everybody to get out. I wouldn’t do that. Because I wouldn’t expect them not to repost it, or show somebody or do something with it, by the very nature of me putting it out there. I kind of feel like that I should have an expectation of them sharing it.

Jackie Critzer 6:50
More likely than not sharing it. Well. Scott, what is the law say about disseminating, or spreading or reposting said things?

Scott Cardani 6:59
There’s been a lot of topics with this. I don’t know if you mentioned name, but I think everybody knows their name. But the point is, it’s been a lot of talking about revenge porn and her idea that the other side posting in a political camp political campaign was revenge porn, which is the site but really the site is this and I’m going to read it and put my glasses on unlawfully disseminating or sale images of another is a penalty. So the crime is this is 18.23 68.2. Any person with the intent to coerce, harass and intimidate, maliciously disseminate cells, or video graphs or steal any video graph or steal image created by whatever means that depicts another person, all kinds of nude stuff there is guilty of a class one misdemeanor.

Jackie Critzer 7:46
So we need to break that down, right? Oh, yeah, the intent to coerce, harass or intimidate.

Scott Cardani 7:52
I think clearly, you know, these words are very broad and very broad for a meeting. But I also think that there’s a context to them at the same time. So coerce is that word it means I’m trying to get you to do something. I’m trying to manipulate you. So for instance, Jackie, if you don’t do X, I’m going to send out that picture that you sent me. But remember, this is not the threat of sending it out. This is actually sent me out with the intent. So I don’t know that coerce works that well in this kind of situation. Because if you want you send it out your expectation they’re going to do something for you probably minimize this a great deal. And that’s what I would argue in court is this is not coercion, this is but I can see that sending it to some person like my grandma. And then I’m gonna send it to the rest of your family may fall into that.

Jackie Critzer 8:45
Well coerce. Okay, under Black’s Law Dictionary, so this, we use Black’s Law Dictionary, not Webster’s Dictionary, because most of these words in code sections are sometimes terms of art, and so they have a legal definition versus a regular definition. So COERCE- Black’s Law Dictionary compelled to compliance, constrained to obedience or submission in a vigorous or forcible manner compelled to compliance. So exactly what you were saying, right, do this. And it’s not really blackmail blackmail is coercion, I suppose. But, yeah. Okay, and then harass? What is harassment, this is a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose. I think that’s the most broad of all.

Scott Cardani 9:36
Yeah, and I think the issue there is the legitimate purpose. So for instance, this is a political campaign that we’re talking about, does it serve a legitimate interest to the public to release that information in? I would think there’s pretty strong arguments on both sides for that, but I do think overall, the idea of you being a candidate is to put yourself out there, this is who I am, this is what I do. That’s what you’re doing every campaign, I’m the mother of two children I’m, you know, vested in the community, blah, blah, blah, blah, these are all the things I am I’m, I’m this I’m that usually talked about your career, you just talk about your goods and you’re done. So you’re definitely putting that out there anyways. So that again, to me, harass is saying there’s no legitimate purpose. So for instance, as the other side as somebody who may be running against you, or just believes what you’ve done is not correct. In the pause, I think this is different, obviously, than a private thing. Private, we can talk about different that private it’s a little more constrained to this word arrest.

Jackie Critzer 10:44
I think that’s true.

Scott Cardani 10:44
You don’t really have a reason. But if you’re a public figure, I think you can’t say somebody harassed me because they brought something out. That was truth that you posted that you posted. So I don’t know. I mean, so for me, that’s a hard, that’d be a hard leap for a court to make, that you are being harassed because somebody in a political context put something out about you. That’s truth.

Jackie Critzer 11:06
Some thing you posted and reposted it.

Scott Cardani 11:10
Well, it’d be the same thing for me like, say it’s not a picture say that you are a convicted felon and didn’t tell anybody.

Jackie Critzer 11:17

Scott Cardani 11:17
What’s the difference? I mean, do people have a right to know that you’re a convicted felon? Is that harassment of you? Because I put the truth out about who you were? I don’t, I don’t think so. Because you’re putting yourself out there in the public eye as a politician. So you come under that scrutiny. That’s why I don’t run. I’m just kidding. But you know, seriously, you you do think about those things, you think about all the things, you know, that are out there. And so you’re you know, now if I’m a private citizen, I don’t think you have a legitimate reason to post something I did. I think it’s the legitimate reasons become stumbling in harassment case.

Jackie Critzer 11:56
A course of conduct directed at a specific person that causes substantial emotional distress. And I suppose that’s a reasonable man standard. It’s fairly objective, not necessarily subjective. But if if I have combed through your Facebook, or your Instagram, or your X, or Twitter or whatever it is that we really don’t have any of them. But if I didn’t found something that I thought was maybe not something you’d want the world to see, but only a few people see. And I repost that. Isn’t that exactly what that is? I mean, I’m taking a course of conduct directed at you and causing you substantial emotional distress. If I’m taking something that’s yours and not intended to be shared. I think where we were the same line, though, gets gets crossed, if you shared it. I’m not sure that there’s a reasonable expectation that it’s not going to be reposted, reshard. Just like in text messages, if I send, you know, somebody on my how many how many politicians right now or have been scrutinized or even public key public figures being scrutinized because of something. They said in an article, something they said maybe in a text message, something they said when they didn’t know the microphone was on. And they were saying to one or two people. The microphone was on it was recorded, career ending statements, right. I mean, those were intended to be private, certainly not to be public. They didn’t even know they were being recorded. Were in this situation. We’re talking about somebody who knows the recording and then and then proceeds to publish it to whatever audience.

Scott Cardani 13:35
Yeah, and I think that these things are very, very fact driven, obviously. And very, very, you know, the other part of the statute says intimidate, you know, what are you what are you trying to do intimidate? So, you know, to me, is it’s a very different thing. If I text Jackie, something, or I text it in a group post, I think if I’m texting Jackie, there’s sometimes an expectation of privacy. But here’s the difference to me. So, Sam, in a relationship with my wife, and I love my wife, and Jackie sends me an inappropriate picture. Is there really an expectation of privacy there? Is there really an expectation, it’s kinda like I was put it this way. We were talking about this earlier, Jackie. Jackie comes to me and says, Scott, look, I killed three people last night…

Jackie Critzer 13:35
I’m going from bad to worse…. HA.

Scott Cardani 13:36
Yeah, whatever. But I’m saying she comes to me and says, blah, blah, blah, blah, did all these things. And then at the end says, looks at me and says, You can’t tell anybody. What do you mean, I can’t tell anybody. And people do this all the time, a relationship, so blurred out. Some of them say, Oh, by the way, you can’t tell. And, you know, if you don’t understand this is a boundary issue in a relationship. If somebody has a boundary, they put the boundary first not after they say something. So they don’t have the courtesy to put the boundary in place and say, Hey, I’d like to tell you something. I appreciate you keeping it confident. That’s a big difference between I’m going to tell you something. Oh, by the way, you can’t tell anybody else that.

Jackie Critzer 14:58
Well. I think it’s different to have that person who received the secret, okay, and then and then threatens, intimidates, courses, harasses takes that information to use it really against that person. You brought up intimidate and Black’s Law says unlawful, unlawful coercion. So it’s kind of a repeat of coerce. It’s a duress or putting in fear. So, you know, clearly it would be the intent to to harass someone, it would, he would be harassing me if he took my admission of some guilt of some crime and publish it right, that would be to harass or court, what would be the purpose? What if he’s on trial?

Scott Cardani 15:40
What if I think you’re a bad person need to go to jail? What if that’s my purpose, that’s my point. So it really becomes that kind of issue. And it really becomes so fact driven, that you’re like, oh, my gosh, and the next part of the statute says any person with any person who with the intent to coerce, harass, intimidate. Then it says, maliciously, and I’m guessing, maliciously and maliciously, and this statute is supposed to modify all the next things which are, disseminate, or sell any video or still image. So it’s, again, now you’re getting into this word maliciously. And I know criminally, what maliciously means? What is black say about maliciously

Jackie Critzer 16:25
malicious, characterized by or involving malice? That’s not terribly helpful. Let’s see having or done with wicked, evil are mischievious intentions or motives, wrongful and done intentionally without just cause or excuse or as a result of ill will.

Scott Cardani 16:45
So again, now you’re getting back to this whole thing of without just cause or excuse. And see, that’s to me, where this whole thing starts to get the rubber meets the road, a good criminal defense attorney will take those things and spin those properly. Not saying so much spin as a negative word. But so what was your purpose? So, Sam, there were public, and I guess it was a Republican operative that didn’t say it was from somebody part of the McCain campaign, as far as I know, it was just a guy who was out there who found this, say my purpose in reposting it was because I don’t think she’s a good political candidate, and people need to know this truth. If I violated a statute, I would say no.

Jackie Critzer 17:26
Well, and then do you go across this little line here and malicious Lee in Black’s I think is a little clearer. Import a wish to vex annoy or injure another or an intent to do a wrongful act and may consist in direct intention to injure or in reckless disregard of another’s rights.

Scott Cardani 17:46
Yeah. So in a political campaign is truth. The intent to write hurt, right. So if I’m getting something out there, it’s truth. For instance, I guess, let’s put another example. Let’s get away from porn and that kind of stuff. Say, I’m running for office. I’m trying to think of something say, I can’t read. Okay, that’d be important for voters to know. Or something else. I’m trying to think some better than can’t read. But my sense, yeah. When you put yourself out there in public, and you’re saying, elect me vote for me, people have a right to know who that person is from, I think, from whatever source it may come from, especially like you said, especially if you put that information out there, it’s already put into a at least semi public platform.

Jackie Critzer 18:37
Well, I mean, maybe you can read, but maybe you just spent, you know, two stents and rehab. Right. And that information is available. Yeah, that that is information that I mean, is it the with the intent to vex or injure? Maybe you have…

Scott Cardani 18:53
But, then you have laws with that, which makes it a little different. So that can be a violation of some HIPAA?

Jackie Critzer 18:56
So… if you’re, let’s say it wasn’t received out of the rehab you visited, right? It was it was something you shared in a private..

Scott Cardani 19:08
Or semi private…

Jackie Critzer 19:09
As private as groups can be online, whatever private, like a members only okay, it’s a members only group and you said, oh, you know, I’ve been through rehab and so on so forth. And somebody in that group, then shares with the with the world at large, hey, wait a minute, he’s running for office. I think the other side, I think people need to know that, that he’s been going through this, that this is a part of what his current lifestyle is like.

Scott Cardani 19:37
For me… it just comes down to I was thinking the other day if I was a Commonwealth’s attorney, and so he brought this to me and said, I want you to prosecute, I’d be like, Well I donno – I don’t think I can do that in good faith. But you know, everybody’s different. And everybody has a different perspective. And then you start to say, okay, if I’m the defense counsel, or what I do, and that’s, you know, you got these things. I mean, there’s even some, I just read a couple of the articles and let it go. I didn’t try to dig too deep. But one of the things was saying something about asking for tips to do other things for a special cause. If that special cause was, her election campaign, when you got election law violations, you got all kinds of things. Plus, again, you take away this whole thing about privacy, you take away this whole thing about an expectation of privacy. So, for me words matter and how these things were presented, all these details are going to, I mean, you want to talk about it a case of the century that probably you would have more visitors, in most cases ever in a courtroom. Just the facts and details of what was put out there, how it was put out there, all those things, and then how it was exposed and what part of it was exposed. Was all of it exposed? Was there a video exposed? Was there a cache of 80 videos that some were private and some were personal? I mean, listen, if you make a video in the privacy of your home home, which I think is dumb as hell, because I’ll tell you why. If you do that, I I’m not saying I have a problem with it. However, let me tell you, as a practitioner, who’s been doing this for a long time, I’ve had cases where the kid gets hold of the iPad…

Jackie Critzer 21:11
Oh, the iCloud sharing Absolutely!

Scott Cardani 21:14
Oh my gosh, or just on theiPad without even have an iCloud. They just forgot. They took it the night before the kid gets up normal course of the day gets on the iPad decides to go to the pictures for whatever reason, and all sudden, he’s watching mom and dad or dad and somebody else, whatever the case may be. But that’s my point, we can say that we do these things. But man. So often in our practice, things come to light that never ever had an intention of coming to light in divorce cases and all this stuff.

Jackie Critzer 21:15

Scott Cardani 21:15
And so, you know, it always amazes me that people trust that they’re going to take a picture, or a video or do something inappropriate on the internet and or put it out there in any kind of, let’s just say with my computer or my phone or anything like that, and somehow captured on one of those devices and think that that is secure. I don’t care if you have the best system in the world. I’m just telling you…

Jackie Critzer 22:07
You use an open network when you go to Panera use an open network when you go to someplace that has Wi Fi. And you’ve just opened yourself up to somebody digging through your phone, or your computer or your iPad. So I think really, we’ve got some fairly serious takeaways today. First and foremost, your expectation of privacy, I’m not sure that there is much of an expectation of privacy when when it’s first of all, even on a device that connects to the internet. Is it reasonable that it’s on your phone, and you would think that it’s private? Sure, it’s probably reasonable. But you have to have the knowledge that That fact alone, that your device that has your secret thing, picture, photo, whatever it is, video or and it connects to the Wi Fi may not so be so private anymore.

Scott Cardani 22:54
I think that’s huge.

Jackie Critzer 22:55
I think we’ve got a second issue, which is this legitimate interest. And here’s why I think this is a big takeaway. Maybe there’s no legitimate interest for the person who’s exposed your thing. You’re still exposed, even if they’re prosecuted, even if maybe they’re not prosecuted, maybe you sue them civilly for some other kind of damage, you are still exposed. Right. And so whether they get in trouble for it is in my mind of less important than how you protect yourself. Our entire point today is you need to be able to protect yourself. So be wise and in what you record and how you record it. And whether you use Snapchat or you use Tiktok or you use your own phone and just save it in your phone under your private secure password protected place on your phone or tablet or computer.

Scott Cardani 23:41
Can I be cray cray? Yeah. Well, why would you do that at all in our current culture? I mean, I’m dead serious. Now, the idea that you would even and again, I noticed a takeaway, and I don’t want to get too big in here. But the takeaway is, why would you have to ask yourself, Why am I doing that? Slow down enough to ask your question, why am I doing this? And what was going to be the consequences of me doing this? And I can guarantee if you’re honest with yourself, there’s probably not a good answer to that.

Jackie Critzer 24:07
Absolutely. Right.

Scott Cardani


Jackie Critzer

It’s a heavy topic today. If you have questions, we’d love to answer them. And you can email us at [email protected]. More Podcast coming to you soon. We look forward to spending more time with you.

Scott Cardani 24:23
And remember, we’re here. If you get in a situation like this on either side, you need your help, come talk to us. We can walk you through this. We have the skills and the legal team to help you through this. These are difficult things and we’re here to help.

Jackie Critzer 24:34
Like and Subscribe. Thank you.

What To Do When… Outro 13:54

We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.

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We look forward to helping you in this venture and Good Luck!