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Public or “Private,” Social Media Posts Can be Used as Evidence

Recent events at the National level has shed some light on privacy concerns pertaining to social media. However, these issues are also being raised in New York as well. Did you know that what you post on social media can be used in evidence in a civil lawsuit, even if you own a “private” account where only people you accept can see it? According to the New York Court of Appeals (the highest court in New York), it can.

In Forman v. Henkin, 2018 N.Y. Slip Op 01015, the Court of Appeals opened up a door into your privacy expectations for Facebook and other social media outlets. In order to understand it’s importance, some background would help. In Forman, the Court of Appeals reinstated a lower court ruling that allowed the opposing party in a personal injury lawsuit to use a plaintiff’s Facebook photos and messages posted to her “private” account to be used.

The case itself centers around an injury incurred by the plaintiff, who fell from a horse owned by the defendant. The plaintiff claimed she suffered spine and traumatic brain injuries including cognitive deficits, memory loss, problems writing and social isolation. At the time, she had a Facebook account where she posted numerous pictures of her pre-accident life. However, she closed the account six months after the accident because she claimed she was having trouble using the computer and writing coherently. She claimed that she could not recall if any post-accident pictures had been posted to her Facebook account before she closed it.

The defendant obviously wanted to access the private portion of plaintiff’s Facebook account to explore the validity of her claimed injuries. Thus, they sought to obtain post-accident photographs that she may have posted. In response, she fought the request on the grounds that the “public” portion of her page had only a single photo that did not contradict her claims or testimony. The plaintiff  stated in a deposition that any photographs and messages posted to her Facebook account would likely contain information relevant to her allegations that she could no longer do the types of activities she could before the accident.

Ultimately, the lower Court ruled in favor of the plaintiff, by limiting the scope of material that the defendant could obtain from Facebook. It ruled that they were only entitled to photographs before and after the accident that were “relevant” to plaintiff’s claims and the timestamp data from her messages. The defendant appealed the matter to the Appellate Division, First Department, who in turn determined that the timestamp data could not be included, but the Court of Appeals reversed the Appellate Division’s determination.

The controversy is whether “private” information on social media is protected from discovery in a civil case. The plaintiff argued that she shouldn’t have to allow her private photographs and messages to be discovered and entered as evidence. But, is that really a fair argument to make? If the information in question is relevant to the case, shouldn’t it be included?

At its heart, social media is a public forum where people go to share their lives and their opinions. They post pictures, make their own statements and respond to others’ posts. They have the ability to choose how much they share with the public, and how much information they restrict from public view. Even so, what they say and what they post become available on the internet the moment it goes live.

The plaintiff in the Forman case stated that the vast majority of her Facebook content was “private.” However, her “understanding” ultimately is not the final word. The Court essentially ruled that just because a social media image or message is deemed to be “private” does not make it so from a legal standpoint. “Private” access means the image or post is accessible, but only to a select group of individuals chosen by the individual. It does not mean the images or the information is privileged to the individual or the people he or she have chosen to share the information with. Furthermore, the Court of Appeals asserted (in no less than an unanimous decision) that Facebook materials are not unique to the site, and that New York’s disclosure rules can be applied to them as long as they apply (i.e. are relevant) directly to the legal matter at hand.

The scope and amount of “private” Facebook information that will be used in the civil litigation portion of this case supports this standard. The Court of Appeals is only permitting photos depicting plaintiff  engaging in the activities she claims she can no longer enjoy because of the injuries from her fall – cooking, traveling, boating, participating in sports, going to the movies and attending theater productions – as well as timestamps from her Facebook messages; not the content of the messages themselves. The Court clearly believed that the defendant has a right to have this information included in discovery, since it can arguably help prove whether the plaintiff’s injuries have really hindered her quality of life, but nothing more than that.

Should this Court of Appeals’ decision cause anyone to reconsider what they post to social media? Maybe. However, it should remind people that what they post is part of the public record, even if they intend it to be seen only by a select few. As such, posts – public or private – are discoverable in litigation.

Mario D. Cometti, Esq. is a Partner at Tully Rinckey PLLC in Albany, N.Y. Mr. Cometti focuses his practice on civil and commercial litigation, and he has represented hundreds of individuals and companies in a wide range of matters, including personal injury lawsuits.

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