Your Facebook and MySpace Pages Are Not Private.

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Be careful of what you say on your FacebookMySpace and other “social media” web pages.  Even if you have strict privacy settings and believe that your comments are only for the viewing of your family and friends, you should always assume that future schools, employers and, now, defendants in lawsuits, can have access to your postings.  Courts over the past few years have repeatedly allowed defendants access to plaintiffs’ comments even though the plaintiffs believed they were “private” or “confidential.”

Courts are Permitting Defendants Access to Plaintiffs’ Social Media Postings

Last year, a New York judge has ruled that a woman who sued an office furniture manufacturer for injuries she suffered allegedly due to a defective office chair must allow the defendant access to her MySpace and Facebook pages, regardless of her security settings.  The judge noted that parties to litigation are entitled to broad access to information relating to the lawsuit, and to not order the access “would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”He concluded that she had “no real expectation of privacy” in her on-line comments even if she thought they were for viewing by only a limited number of people.  The plaintiff’s attorney complained that the ruling is “equivalent of removing the curtain over your living room or bedroom window.”

In a later case, also in New York, a judge similarly concluded that “[t]he statements made by Wife on her blog pages are relevant to Wife’s testimony respecting the effect the Accident has had on her life and her resulting demand for” long-term alimony.  He noted that “admissions posted by Wife contradict her claims that she is unable to work due to injuries sustained in the Accident, rarely leaves home, and socializes only once per month.”  A Philadelphia judge similarly concluded that “it is clear that no person choosing MySpace or Facebook as a communications forum could reasonably expect that his communications would remain confidential” and refused to find a “privilege” which would protect a plaintiff from preventing a defendant’s access.

While “Mere Participation” on Social Media is not Usually Relevant, the Content of Communications Often Is Relevant

A federal judge in Indiana recognized that the mere fact that a plaintiff participated in social media does not show that they did, or did not, suffer from depression.  However, the content of communications could either (a) disclose other causes for her mental status or (b) refute her claims by disclosing, for example, that while she claimed during her lawsuit that she was being harassed at work, she regularly posted how happy she was with her job.

Some courts have been willing to place limits on the content that must be disclosed.  They have reviewed the information posted by the plaintiff on the social media site and have determined which ones have potential bearing to the lawsuit.  In so doing they have precluded the disclosure of possibly embarrassing information which has no conceivable relationship to the lawsuit.  However, not all judges are likely to engage which could be a lengthy and tedious process to weed through comments about videos of cats attacking photocopiers to find the kernels of relevant information.

Do Not Say Anything on Social Media That You Want to Keep Private

The recommendation that social media users practice caution when posting information is a common-sense one.  In the days before the widespread use of these websites, defendants often when to great lengths to prove that an injury was fake by using investigators to follow plaintiffs and try to photograph or film them engaged in activities that were inconsistent with the injuries they claimed.  Now, photographs, videos or even “status updates” publicly posted may provide all of the necessary evidence. There is a modern adage which is “don’t post anything you would not want your mother – or boss – to read.”  That statement should also include “other parties to any lawsuit.”

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    Marc A Wites
    Marc A. Wites is the founding shareholder of Wites & Rogers. He directs the firm’s litigation practice groups for personal injury and wrongful death cases, class actions, property insurance claims, sexual assault, and investment fraud.

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