No Such Thing As Privacy in the Social Media World

by Mike Mintz on December 1, 2011

in martindale.com

In the age of social media, our lives have become increasingly public. Some people blog about their latest travel adventures. Others post pictures on Facebook of the events of their lives. While others tweet every insignificant occurrence of their day. It has become a normal way of life, but we forget that it’s all on the worldwide Internet.

Sure, Facebook offers “privacy” settings. You can adjust your Facebook profile so that only your “friends” (You know. Those people you went to high school with, who you barely even remember?) can see your posts on the mundane or intimate moments of your life. Or, better yet, you can customize your settings so that dear old Grandma, who is now on Facebook, can’t see you smoking that cigarette. However, while you may think you are controlling the privacy of your life, courts have come down unanimously, holding that an individual’s Facebook or social media posts are not private and are entirely discoverable during times of litigation.

In the Pennsylvania personal-injury action, Largent v. Reed, plaintiff alleged she suffered from chronic physical and mental pain as a result of a motorcycle accident. During the discovery process, defendant requested plaintiff’s Facebook username and password to view her posts and pictures, believing that through such evidence, it could prove that plaintiff’s injuries were not as severe as she purported. The court held that “it is clear that material on social networking sites is discoverable in a civil case” and that plaintiff had “no reasonable expectation of privacy in material posted on Facebook.” Thus, the court ordered that she hand over her username and password.

Similarly, the NY Supreme Court in Patterson v. Turner Construction Co., granted the defendant in this personal injury action full access to plaintiff’s Facebook account. Plaintiff appealed the decision, and the appellate division agreed with the lower court that plaintiff’s Facebook account was discoverable.  However, it limited the defendant’s full access. The court found that while some post-incident Facebook content would be relevant, plaintiff’s entire Facebook life post-accident should not be fair game.

So, maybe, today, Grandma won’t see that picture of you puffing on that cigarette, and your colleagues won’t know that you weren’t really sick that day you went to the Mets game. But, one day, a court may order you to turn over your username and password to Facebook, and, then, all bets are off.

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