Sunday, October 17, 2010

Recent Court Decision Holds Employee Had No Reasonable Expectation of Privacy in Facebook and Myspace Content

A plaintiff alleging permanent physical injuries sought to prevent discovery of contents from her Facebook and MySpace pages which displayed content in direct contradiction to her claims that she had sustained permanent injuries. The defense sought to discover and use this evidence against the Plaintiff. However, the Plaintiff set her privacy settings so that "only friends" could view the content but a Supreme Court of New York (remember Supreme Court in New York is trial-level and each county has a Supreme Court) said that did not matter and allowed for discovery of the content. From the opinion:

Thus, it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity access [sic] these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

Romano v. Steelcase, Inc., No. 2006-2233, 2010 NY Slip Op 32645U, *5 (Sep. 21, 2010). The Plaintiff could not even be saved from prior content that she may have deleted. The court granted defendants access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted or archived content (which defendants could obtain from Facebook and MySpace directly).

The issue was one of first impression for the New York court and in seeking guidance in their ruling, they looked to Facebook's privacy policies:
Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.
Romano, 2010 NY Slip Op 32645U, at *7.

This case is somewhat disturbing in that virtually everyone in this day and age has a Facebook or some other form of social networking website profile. What if the employee had deactivated their account in anticipation of litigation? It seems as though the content would still be discoverable. Obviously employees should not file cases that they know are less-than-honest and this evidence will potentially lead to more accurate decisions and verdicts, but will this then lead to the downfall of social networking website membership? This may be an issue on a likely path to argument in the Supreme Court of the United States and we can only hope the Justices will have an easier time with it than they did with employee privacy in the text message arena.

The case is Romano v. Steelcase, Inc.

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