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New York Civil Litigation Review

Social Media and the Law – Evolving and Inconsistent

Posted in e-Discovery and Social Media

As of June 2012, Twitter had over 500 million users and Facebook had 955 million active users monthly. If you’re reading this blog, you likely have an account with either these services, or any number of other social networking sites. As technology progresses, more and more individuals use these sites daily. With the growing threat of identity theft, these services adapt their privacy settings to allow users to protect and shield their activity and personal information from the public at large. But what does that mean to the Courts?

Unfortunately, our judicial system has not kept up with the rapid advancement of the Internet and social networking. With no higher court decisions to unify and direct the trial courts in this arena, courts have come to varying conclusions regarding the discovery of information posted on social networking sites. Some courts have held that parties lack reasonable privacy expectations for information posted on these sites, despite privacy settings, where other courts have found that materials are private when secured from the general public.

Some notable cases that discuss the anticipation of privacy on social networking sites have been heard in Indiana, Connecticut, California, Michigan, Tennessee and New York.  In Equal Employment Opportunity Commission v. Simply Storage Management, Plaintiff EEOC filed a complaint on behalf of two named claimants who alleged that the defendant businesses were liable for sexual harassment by an employed supervisor.  The court determined that the claimants’ social networking content was not shielded from discovery, albeit “locked” or marked “private.” Materials including “profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and [social networking] applications” had to be produced where relevant to the claim or defense. However, this access is constrained. The court determined that pictures that are posted on a third party’s profile, where the claimant was “tagged” were less relevant, as are pictures or videos of individuals other than the claimant.

The Supreme Court of Suffolk County, New York, ruled similarly in Romano v. Steelcase Inc.  In Romano, the defendant sought access to the plaintiff’s current and historical Facebook and MySpace pages, including deleted pages, related to her injuries. The Court granted access to the plaintiff’s social networking sites as there was reasonable likelihood that the private portions would contain material and relevant evidence with regard to her activities and enjoyment of life.   On the other side of the spectrum, the District Court for the Central District of California has implied more protection over a user’s social networking account. In Crispin v. Christian Audigier Inc., the plaintiff filed an action alleging copyright infringement.  The defendants in this matter served subpoenas upon Facebook and MySpace.  The plaintiff moved to quash these subpoenas, arguing that seeking such material is prohibited under the Stored Communications Act. This Act prevents Internet operators from revealing private communications, as divulging such information requires the lawful consent of the user. The court ruled that the basic subscriber information, such as the user’s name, email address and other contact information, is obtainable with a subpoena. However, the plaintiff had standing to move to quash the subpoenas that sought the personal and private information. Successfully quashing such a subpoena requires an individualized review of the user’s privacy settings.

Another case that shielded the privacy of social network users is Tompkins v. Detroit Metropolitan Airport.  Here the plaintiff suffered a slip and fall and sued her employer. A Federal District Court in Michigan ruled that while social media materials are discoverable, there must be a showing of relevance before the court will move to compel production of a user’s Facebook profile page. The Court held that “If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account.” Requesting access to a user’s entire Facebook account would be overbroad.

Courts have also thought outside the box to find creative solutions to this privacy problem. In Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, the District Court for the Middle District of Tennessee crafted a peculiar solution. In this case, a bar patron slipped from the wet bar top, falling and striking her head on the ground. Defendant subpoenaed Facebook for the plaintiff’s information, including photos of the plaintiff and her friends dancing on the bar. In an effort to promote discovery, the Judge offered to create a Facebook account for the sole purpose of reviewing the photographs and related comments in camera.  He would disseminate the relevant information to the parties, and then delete the Facebook account.  Such an alternative would limit the user’s privacy infringement to the arbiter of the litigation.

In one of the most peculiar decisions regarding social networking privacy, the Superior Court of Connecticut found a way to bridge the privacy concerns of a couple in a divorce dispute.  In Gallion v. Gallion, the Court ordered the couple’s counsel to exchange their social networking and online dating passwords.  The parties themselves would not be given the passwords; however, opposing counsel would be permitted to use the comments and pictures obtained from these sites in court. Further, the Court prohibited the parties from visiting the opposing party’s website or posting messages claiming to be the other.

We live in an age where people announce their relationships on Facebook, post their political agenda on Twitter, and advertise their restaurant choices on any number of social networking sites. Depending on the State, Court and Judge, your privacy is not necessarily guaranteed should you ever become a party to litigation. When all else fails, keep your account private and think twice before you grab that smart phone.