Fun with Facebook

by Greenberg Glusker Fields Claman & Machtinger LLP

In the last few months, numerous cases involving Facebook have resulted in amusing rulings that we would be remiss to ignore.  On deck for this blog post we have three good ones:

  1. A judge issued an adverse ruling to a litigant who refused the judge’s friend request [Hint: Never refuse a judge’s friend request while the case is still pending!];
  2. A nurse was fired and denied unemployment benefits because of her colorful Facebook rant against her employer; and
  3. A school-district IT director in Georgia trolled through students’ Facebook pages and used a risqué student photo in connection with an internet safety slideshow (causing great embarrassment to the student and her mother).

Case No. 1:  The Friendly Judge

Most litigants who seek to avoid the consequences of an adverse judgment or ruling by complaining about Facebook activity usually fail to succeed.  Notable exceptions include (a) a Florida case where the judge was disqualified over a Facebook friendship with the prosecutor; and (b) a U.K. case where a juror sitting on a criminal matter asked her Facebook friends to help her make up her mind by voting on the guilt or innocence of the accused.

In a different recent Florida case, a judge sent a friend request to a litigant who, after consulting with counsel, declined the request.  The judge then ruled against the litigant.  The litigant filed a motion to disqualify the judge and, unsurprisingly, the judge denied that motion.  The Court of Appeal reversed, noting:

the “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

The other risk, not mentioned, is that if the litigant had won, the other side might have claimed an improper relationship existed that tainted the judgment.  A real Catch-22.

Case No. 2:  The Snitched-On Nurse

In a recent California case, a 12-year veteran nurse at Seton Medical Center posted the following on Facebook:

Instead of spending my birthday celebrating, I will be working all night cleaning up feces. I loathe that effin heffer!!! Burn in hell you effed up spawn of satan. I curse you and wish you a lifetime of pain and suffering. That is not enough, right now I would give anything you small you down and pound you to unconsciousness. ‘Tang ina* mo!!!!!  [Editor’s Note:  This is a Tagalog curse]

Thanks to the effin heifer who royally effect up my schedule, not only am I working Mothers Day, my birthday and my anniversary. And this Friday, I will be getting the smallest paycheck I had in 12 years due to the 17 percent pay cut we had to endure.

Unfortunately for the ranting nurse (who had never been disciplined previously), one of her co-workers snitched on her to the medical center.  The center terminated the nurse the next day.  After being denied unemployment benefits, the matter ended up in court where it was determined that the benefits were properly denied because the post contained a credible threat of violence.

Case No. 3:  The Bikini-Posing High School Student

A University of Georgia freshman, Chelsea Chaney, sued her former high school for $2 million for using a risqué swimsuit photograph obtained from her Facebook page without permission.  The photograph — which was taken when Ms. Chaney was 17 years old — was obtained by the school district’s IT director who was trolling for underage hotties browsing students’ Facebook pages for pictures to use in his community presentation to demonstrate a point.  As, Ms. Chaney alleges, the picture was used in the IT director’s slideshow in an embarrassing way that implied that she would be branded as a sexually-promiscuous abuser of alcohol who should be more careful about her Internet postings.  After the community presentation, Ms. Chaney complained to “WSB-TV that she cried a lot over the incident and felt bullied by the school district.

As for her legal claims, they all hinged on the issue of privacy.  Ms. Chaney had posted the photograph on a Facebook page available to both “Friends” and “Friends of Friends.”  The Court focused on this latter “Friends of Friends” category, stating:

…Chaney fails to acknowledge the lack of privacy afforded her by her selected Facebook setting.  While Chaney may select her Facebook friends, she cannot select her Facebook friends’ friends. By intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends).

Conclusion?  If you make your bikini shots available to thousands upon thousands of people, you no longer can have any expectation of privacy as to those pictures.  In fact, even if Ms. Chaney had limited the posting to her “Friends” only, it is likely she still would have lost.  As another court put it, individuals can’t reasonably expect their friends to keep their profiles private because those “friends” are free to use the information however they want.

Some friends, right?

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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