The Screenshot Problem: Why Nothing Is Really Private Anymore

Screenshots have changed the risks of electronic communications. The screenshot problem is that messages intended for one person or a small group can be copied, forwarded, preserved, and ultimately presented to opposing counsel, regulators, journalists, customers, or a jury. Businesses should recognize that a truly private digital conversation is increasingly unreliable and ensure their policies, training, and litigation practices reflect that reality.

Key Takeaways

• Private does not mean protected. Texts, direct messages, group chats, and private social media posts can be captured, forwarded, and potentially obtained in litigation.
• Informal communications can create formal legal problems. Employees and managers should use the same judgment in texts and workplace chats as they do in email.
• Deleting a message does not necessarily eliminate it. Copies may exist elsewhere, and deleting relevant communications after litigation is reasonably anticipated can create additional problems.
• Employers still need to respect employee privacy rights. The risk that private content may surface does not give an employer unrestricted access to personal accounts or devices.
• Policies should reflect how employees actually communicate. Litigation holds, retention policies, and employee training should account for texts, messaging platforms, social media, and personal devices used for business.

The Illusion of a Private Conversation

For businesses, the line between a private conversation and a public record has never been thinner. An employee sends a frustrated text to a colleague. An executive makes an offhand comment in a group chat. A manager sends a direct message that disappears after 24 hours. Someone posts something to a private social media account and deletes it a few minutes later. In each case, a screenshot may still create a permanent record.

The growing “screenshot problem” is tied to the increasing informality of workplace communications. Text messages, direct messages, Slack or Teams chats, and group conversations often lack the formality of email, which can cause people to communicate more casually than they otherwise would.  Even Zoom meetings are being recorded or transcribed.  A manager who would never include a questionable comment in a formal memorandum may hesitate little to type it into a spontaneous text. An executive discussing a sensitive personnel decision may assume that a small group chat will remain confidential. Employees may also assume that deleting a message or using a disappearing-message feature means the conversation cannot resurface.

Those assumptions can prove costly. Anyone who can view a message may be able to photograph it, screenshot it, forward it, or copy it elsewhere. Deleting the original communication also does not necessarily eliminate copies held by recipients, stored on other devices, or preserved through other means. From a risk-management standpoint, businesses should assume someone outside the intended audience could eventually see an electronic communication.

The Screenshot Problem in Litigation

The screenshot problem becomes particularly significant when a dispute leads to litigation. Electronic communications may be discoverable when they are relevant to the claims or defenses in a lawsuit. This can include emails and formal company records, as well as text messages, photographs, social media content, and other electronically stored information.

New Jersey courts have made clear that labeling social media content as “private” does not necessarily put it beyond the reach of discovery. In Davis v. Disability Rights New Jersey, the Appellate Division held that relevant private social media posts are not privileged simply because the account holder intended them to remain private.

A screenshot may also serve as evidence, but its existence does not automatically make it admissible. As with other evidence, questions may arise about relevance and authentication, including who authored the underlying communication, whether the screenshot accurately reflects the original, whether it omits part of the conversation, and whether the image has been altered. Those issues become particularly important when a screenshot captures only part of a longer exchange.

Deleting the Message May Create a Bigger Problem

Once litigation is pending or reasonably anticipated, businesses must also consider their preservation obligations. Potentially relevant evidence may need to be preserved, and those obligations can extend beyond conventional documents and email to other forms of electronic communication.

Ordinary messaging habits can create problems here. Employees accustomed to routinely deleting texts or using disappearing-message functions may continue doing so without considering whether the communications are subject to a litigation hold. Depending on the dispute, preservation efforts may need to encompass text messages, collaboration platforms, messaging applications, social media, personal devices used for company business, and other sources of electronically stored information. A communication does not escape preservation requirements merely because it was sent casually or through an informal platform.

Privacy Laws Still Matter

Recognizing that private communications can surface does not mean employers have unlimited authority to search employees’ accounts or devices. New Jersey law, for example, generally restricts employers from requiring or requesting current or prospective employees to disclose usernames or passwords or otherwise provide access to certain personal social networking accounts. The law distinguishes personal accounts from accounts used for the employer’s business purposes.

That distinction matters during an internal investigation. If an employer receives a screenshot of a troubling social media post, text message, or group chat, management should consider both the communication’s substance and how the information was obtained before attempting to access additional material. Depending on the circumstances, privacy laws, employment policies, contractual rights, and other legal considerations may affect what the company can appropriately request or review.

The Risk Extends Beyond the Courtroom

A damaging screenshot does not have to become a trial exhibit to create problems for a business. Internal communications can be forwarded to customers, circulated among employees, posted publicly, or provided to the media. A remark that seemed harmless in the context of an ongoing conversation may take on a very different meaning as an isolated screenshot.

The risk is especially significant for executives, managers, human resources professionals, and employees who regularly discuss personnel matters, customers, competitors, transactions, or confidential business information. Screenshots also frequently lack context, omitting the messages that came immediately before or after the captured exchange. Once an image begins circulating, however, the company may have limited ability to control how people interpret the communication.

Workplace Policies Need to Catch Up

Companies do not need to prohibit employees from texting or using workplace messaging platforms. Those tools are now part of everyday business. The screenshot problem is a reason to revisit the policies that govern them. Policies should, however, reflect how employees actually communicate rather than focusing almost exclusively on email and traditional company records.

Businesses should consider reviewing their electronic communications, social media, confidentiality, document-retention, and acceptable-use policies together. Among other issues, those policies should address the use of personal devices for company business, identify approved communication platforms, establish expectations regarding confidential information, and account for applicable retention requirements.

Training is equally important, particularly for managers and other employees who routinely handle sensitive information. Personnel decisions, complaints, disciplinary matters, internal investigations, customer disputes, and legal advice warrant appropriate care whether the discussion happens in a formal email or a quick text exchange. The convenience of a communication platform does not change the sensitivity of the subject matter.

When a Screenshot Surfaces

When management learns of a potentially damaging screenshot, the first reaction may be to confront the employee, delete the underlying material, or immediately issue a public response. Depending on the circumstances, any of those steps could complicate the situation. The screenshot problem rarely ends with the single image in hand. Before acting, the company should determine what the screenshot actually shows, whether the full conversation is available, how the information was obtained, whether preservation obligations apply, and whether employment, privacy, confidentiality, or other legal issues are implicated.

Counsel can also help determine whether to preserve additional electronic information and whether an internal investigation is appropriate. Acting quickly may be important, but acting without understanding the legal implications can turn an uncomfortable communication into a more significant problem.

Think Before You Hit Send

No realistic way can prevent every screenshot, nor should businesses try to eliminate the electronic communications that have become essential to modern workplaces. A more practical approach is to remind employees that the intended audience for a digital communication may not ultimately be its only audience.

Employees do not need to write every text or Teams message as though it were a legal memorandum. They should, however, exercise judgment when discussing sensitive subjects electronically. Before sending a message, especially one involving an employee, customer, dispute, transaction, or confidential business matter, consider how it would look if someone read it later without the surrounding context.

Whether the platform is email, text, Teams, Slack, social media, or a disappearing-message application, “private” should not be treated as synonymous with confidential or temporary. In an era when virtually anyone can preserve a conversation with a screenshot, businesses should plan accordingly.

How Scarinci Hollenbeck Can Help

Electronic communications increasingly play a central role in employment disputes, commercial litigation, internal investigations, and reputational crises. Businesses should periodically review whether their policies and preservation practices keep pace with how their employees actually communicate. Our Crisis & Risk Management attorneys can also assist with electronic communications and retention policies, litigation holds, internal investigations, discovery issues, employee privacy concerns, and responses to potentially damaging electronic communications. For guidance on any of these issues, contact Sean M. Pena.