Technology Law Rebooted Current Developments and Practical Tips

Oct 06 2010Court Rules That “Private” Social Media Postings Are Discoverable

Even if you have (wisely) adjusted your Facebook settings so that your posts and photos are “private,” the information you share through social media may still be discoverable by third parties in certain circumstances. 

 A New York judge has recently held that social media providers may be required to provide access to postings designated as “private” (including archived and deleted posts) where the postings contradict claims made by the poster as part of a personal injury action. 

 In the New York case, the plaintiff had claimed that she suffered “serious permanent personal injuries” by falling off an allegedly defective desk chair.  However, the public portions of the plaintiff’s Facebook and MySpace profiles revealed that the plaintiff engaged in physical activities inconsistent with claims she made in the litigation. 

 The defendant requested that access to all information on the plaintiff’s social media pages be provided.  Although the plaintiff argued that accessing the “private” postings would be an invasion of privacy, and although Facebook opposed the request, the court ordered that the requested access to the “private” postings be provided.

 The court explained that because the plaintiff had placed her physical condition in controversy, she could not prevent the disclosure of material relevant to the extent of her alleged injury.

 Although this New York decision is arguably inconsistent with other court rulings on this issue, users of social media should be mindful of risks of disclosure of information posted on social media sites.  A person involved in litigation or other controversies should post mindfully and with all due caution, given the risk that “private” posts may be discoverable.