Are Facebook And Myspace Posts Really Private?

It may seem like an invasion of privacy, but your Facebook and MySpace comments can be admissible against you in a court of law in New York.  Your privacy settings are not particularly relevant to judges who rule on admissibility. Even if your account is password protected and you have adjusted your privacy settings to limit the number of people who can access your profile, your posts may be subpoenaed by opposing counsel. The bottom line is that once you post a comment on a public website, you no longer have a reasonable expectation of privacy of the content of your post.

This electronic discovery (e-discovery) rule has its foundations in the New York Supreme Court (NYSC) decision in Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 2010. In that case, the court ruled that a plaintiff who alleged permanent physical injuries did not have a legitimate expectation of privacy in her Facebook and Myspace accounts, saying,

[I]t is reasonable to infer from the limited postings on Plaintiff’s public Facebook and Myspace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity [to] access these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

At the end of the day, the plaintiff in this case was ordered to turn over access to current and historical information relating to her “activities and enjoyment of life.” Needless to say, this plaintiff’s social media posts exposed evidence that contradicted her claim of a permanent disability.

Laws regarding e-discovery vary by jurisdiction. No consensus exists among the states and the federal government about the privacy of social media posts.

Posted in Civil Litigation

Tagged e-discovery, facebook, New York Supreme Court, right to privacy, social media