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Perspectives on Privacy and Social Media

Please Note the Historical Perspective of the Content Below. This is not intended to be legal advice.

Every day millions of people log on to Facebook and other social media sites to post pictures of adventures and everyday events, update friends on life's happenings, and express thoughts and feelings. While using these new online social media, most assume that since they selected "private" status for their accounts, and because they only share information and pictures with their friends and family, that those who are not meant to see this information won't. But this thinking may be flawed.

Consider the logistics of keeping private the sheer volume of information flowing from social-media sites. In its December 2010 selection of Facebook founder Mark Zuckerberg Person of the Year, Time Magazine cites daunting statistics:

  • Facebook membership reached 550 billion this year (one of 12 people globally)
  • Daily 700,000 new members join Facebook
  • In November one-quarter of all U.S. page views were to Facebook
  • Almost half of all Americans have Facebook accounts
  • Facebook posts 100 million new pictures every day

More recently, in late 2011, an engineer with Facebook photos confirmed they were uploading 200 million photos a day. It’s now common knowledge they are, by far, the largest photos site on the Internet.

Time's observation about online privacy is relevant to the topic of this article: "the Internet was built to move information around, not keep it in one place, and it tends to do what it was built to do." How realistic is it to think anything you post online even to a limited audience won't end up as evidence in a later lawsuit?

According to legal opinion pieces on FindLaw.com, if you are involved in a personal injury lawsuit, your comment and picture posts to social-media websites such as Facebook and MySpace may be discoverable as potential evidence by the other side, although jurisdictions are split on the issue. This may not be something you relish, whether you are bringing the suit or defending it.

New York Example

In Romano v. Steelcase Inc., a New York state personal injury plaintiff was compelled to produce "private" postings on Facebook and MySpace for discovery after the Supreme Court (trial court) in Suffolk County decided in September 2010 that the postings were "material and necessary" to the legal and factual issues surrounding the extent of her injury and how much it affected her enjoyment of life.

The defendant asked the court for access to Romano's postings because it believed the posted comments and photos could refute her injury claim and allegation that she had lost the enjoyment of life. The court agreed, noting that "the primary purpose" of social-media websites "is to enable people to share information about how they lead their social lives," and ruling that users have "no reasonable expectation of privacy" on social-media websites even when they choose more restricted privacy settings.

The court focused on the essence of a personal injury lawsuit. By filing, Kathleen Romano herself put her "physical condition in controversy." Interestingly, the opinion analyzed similar Canadian cases in light of New York's "liberal disclosure policy." The court also commented on both sites' warnings that whatever users post is at their own risk despite privacy settings.

California Federal Court Weighs In

The U.S. District Court in the Central District of California had a different view, holding in the May 2010 copyright case Crispin v. Christian Audigier, Inc., that the defendant could not subpoena plaintiff's private postings on social-media websites. The court equated the privacy of a "friends only" access setting to that expected in an e-mail message, banking record or employment file. Had Buckley Crispin allowed his profile and posts to be viewed by "everyone," the court would have deemed the content truly public.

Reasonable Expectations

Remember, both Facebook and MySpace, for example, caution their users that the sites cannot guarantee the privacy of posted content. Indeed, common sense dictates that parents of American teenagers should already routinely warn their kids to remember that once something hits the Internet, the cat is out of the bag and that information may return to haunt. And that warning is just as important for adults, especially those involved in lawsuits that raise legal questions about physical, mental and emotional well being like personal injury suits and child custody matters.

While jurisdictions are currently split on what information posted to social-media websites is discoverable in a lawsuit, it is wise to remember Facebook's warning, "[y]ou post User Content ... on the Site at your own risk."

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