Peacock Tales • Spring 2013

 

Social Media: How Private Is It?

By Eric D. Harbison

In 2005, when the Pew Research Center first assessed social media usage among American adults, a meager 8% of adult internet users were actively engaged in the use of social media. Since that initial data was collected, social media usage has undergone a meteoric rise and, based on the most recent Pew reports, 65% of adult internet users now actively use social media platforms like Facebook, Twitter and Google Plus. With 43% of American adults accessing social media sites on a daily basis, only e-mail and search engines are used more frequently.

As a consequence of the explosive growth of social media, issues concerning the discoverability of information contained on these interactive services have grown increasingly common in civil litigation. A picture posted online of a recent ski trip, for instance, may be damaging evidence against a personal injury plaintiff. While businesses are beginning to adjust to the changing landscape of e-discovery by installing protective social media policies at the workplace, individuals need to understand how social media content can affect their rights.

Expectation of Privacy

“Facebook is not used as a means by which account holders carry on monologues with themselves.” That was the blunt appraisal of a Canadian court in 2009, assessing the expectation of privacy as it pertains to social media and it is a sentiment largely echoed by American jurists. Describing the primary purpose of social networking sites as the sharing and dissemination of information, a New York court, in a 2010 decision, noted that, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.” The prevailing view is that individuals do not have a reasonable expectation of privacy with regard to the content of their social media communications and this information will be open to discovery in civil litigation.

Individual Security Settings

Many social media service providers offer customizable security options individual users can tailor to their own preferences. Facebook, for instance, allows users to designate which networks or groups of friends can view certain posts or photos. These self-created protections, however, do not shield social media content from applicable discovery requests.
Besides the innately open nature of social media, Courts have reasoned that material protected by user-installed security settings is still freely accessible to at least one other person and there is nothing restricting that person from sharing it with others. Moreover, site operators have largely unrestricted access to all information contained on the particular social networking platform, irrespective of privacy settings. Social media users must recognize that nothing they share through a social networking platform should be considered private, no matter how stringent their personal security settings are configured.

Preservation of Evidence

Social media users who do find themselves embroiled in a legal dispute should pay particular attention to the duty to preserve social media content. A 2011 Virginia case provides a cautionary tale: after his attorney advised him to “clean up” his Facebook profile containing potentially damaging pictures and posts, and then later deactivating his profile altogether, the attorney and his plaintiff client were ordered to pay a combined $730,000 for spoliation of evidence. Upon the filing of a lawsuit or the receipt of a Preservation Letter from opposing counsel, parties to litigation where social media content could potentially be discoverable should refrain from altering their social networking profiles in any way that jeopardizes possible evidence.

As the popularity of social networking sites continues to rise, so too will the importance of social media content in litigation. Individuals utilizing these services need to be mindful of the information they share and its possible impact on their legal rights.


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