Don’t Assume Your Instagram Is Private

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In February 2018 we wrote about a recent New York appellate case making clear that those who post information about themselves on Facebook are going to have a difficult time asserting that the posting is private and not subject to scrutiny in subsequent judicial proceedings. This is especially true where the content of the posting can be tied to the litigation. In that case, a Facebook posting was found to be discoverable in a personal injury case.

That was New York in February and the law of New York does not necessarily apply in its sister state of Pennsylvania.  But, just as the highest court in New York was grappling with Facebook postings, a trial court judge in Monroe County, Pennsylvania (think Poconos) was deciding a very similar kind of case.

Kelter v. Flanagan is a personal injury case arising out of an auto collision.  In pre-trial discovery, the defendant made a demand upon the Plaintiff to preserve and produce communications the plaintiff had on Instagram after the collision occurred.

In a deposition, the plaintiff professed not to have social media accounts.  The defendant’s counsel was instantly able to show that fact to be untrue as the attorney possessed postings published by plaintiff on a public Instagram account.  Instagram has both public and private access options.  When the defendant pressed for access to private messages, the plaintiff sought protection from that stating that she had produced all of her public access messages.  Alas, the court found that Instagram allows its customers to toggle between public and private and that one cannot use a change of account status as a defense to production of this information.

The defendant’s goal in this case is to secure evidence of activities which belie the claim of injury or mitigate the extent of it. As Judge David Williamson aptly notes, pre-trial discovery is intended to allow the parties to explore any evidence that makes the existence of a fact more or less probable.   Pa. Rule of Evidence 401.  Communication on any social media platform is a statement, and, if that statement helps a court to assess what caused an event or what impact the event had upon the person experiencing it, chances are strong that claims of privacy will yield to a judicially sponsored search for truth.

In this case, the remedy was quite broad.  The Plaintiff was directed to provide her log-in information.  Lord knows, what will be behind that door.  Under the rules of evidence only relevant facts are to be brought to the courtroom, but under this ruling the counsel for the defendant may get to see a lot of personal material the plaintiff never dreamed would be available to strangers.  Attorneys viewing these communications could themselves be liable for unnecessary publication of private information in an invasion of privacy action if they circulated embarrassing data not directly relevant to the case.  But, no doubt, rulings like this may produce some scandalous material and some testy arguments over whether embarrassing information is relevant to the action before the court.

This is a personal injury case, but the ruling, while not precedential, has merit in a family law setting as well.  So beware of what you write or post because unlike oral communication, Instagram might be forever, or just long enough to expose you.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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