Lew Tesser gratefully acknowledges the assistance of Timothy Nolen, Esq., associate at Tesser, Ryan & Rochman, Esq., in the preparation of this article.
Time after time, friends, family, employers and now even the courts remind us: be careful what you post online, as it may not be as private as you think. Whether you mark something as “private” or not, it might be used against you in court someday.
In recent years, technological advances have changed the way we live and work, but few developments have had as far-reaching an impact on our lives as social media. With friends and family posting more details than ever about their lives, it can be tempting to “put yourself out there,” in effect documenting daily activities on social media through postings and photos. For some of us who aren’t so open, it might be comforting to assume that carefully managing social media settings really will keep your information private, and that there is no downside as long as we don’t make our profiles public.
Think again! A recent case, which went all the way to the New York Court of Appeals (New York State’s highest court), made it abundantly clear that simply making your social media accounts private is insufficient.
In a case involving a woman who was severely injured when she fell off a horse, the woman sued the man who owned the horse for money damages. She claimed she had previously lived a very active life (which she had frequently posted about on Facebook), but now could not be as active due to both her physical and cognitive injuries. In a process called “discovery,” the owner sought access to the woman’s private Facebook postings and photos in order to see just how severely the accident had really impacted her day-to-day life. (“Discovery” is a procedure that requires individuals involved in a lawsuit to hand over certain documents or information.) The woman refused to hand over her private Facebook information, claiming among other things that it would be an invasion of her privacy.
In a decision that should give pause to many active social media users, New York’s highest court ordered her to hand over her private Facebook information. The court noted that “some materials on a Facebook account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant.” In other words, courts focus more on whether information is important or “relevant” to a case, and less on whether information is classified as “private” or “public.”
This is not to say that all users’ private social media must always be turned over in discovery. In order to gain access to such private social media information, the party seeking it must demonstrate that the social media content is likely to lead to relevant information.
So how could private Facebook information be relevant to determining whether the woman was injured when she fell of the horse? (She certainly wasn’t posting about it as it was happening.) As the court noted, reviewing her Facebook posts and photos might help determine just how “active” a lifestyle she really enjoyed before the accident. Or perhaps her recent private posts would demonstrate that, contrary to what she says, she still lives a very active lifestyle. Or maybe the fact that, post-accident, she was still able to write lengthy, complex and detailed Facebook posts would undermine her claim that she had suffered severe cognitive injuries and had “difficulty writing and using the computer.”
Court records do not reveal whether the search of her private documents revealed anything harmful to her, but the point is, it could have.
As the court’s reasoning demonstrates, you should be mindful that what you post on Facebook or any other social media site might be relevant at trial in ways that you would not normally expect. For example, perhaps your “checking in” on Facebook someplace five minutes before an accident could be used to prove you were near the accident when it happened; or maybe your use of nicknames on Twitter could help identify you in a situation where you were relying on anonymity; or maybe your Instagram post with language complaining about how you got a black eye might prove the real source of your injuries; or maybe your LinkedIn profile and postings might undermine your claim that you were disabled and couldn’t work.
Social media has been a terrific tool to bring friends, families, and even businesses together. But remember that just because you mark something as “private” doesn’t mean it can’t be used against you in court—another reason you should be careful what you post online!
(The Court of Appeals case discussed is Forman v. Henkin, 2018 N.Y. LEXIS 180 (Feb. 13, 2018). The examples of the relevancy of “private” social media postings are based loosely on recent New York cases.)