By this point most of us are aware of social networking sites, the current darling being Facebook, which has taken over from MySpace, which took over from Friendster and so on and so on. An October 4, 2012 press release by Facebook boasts one billion users.
Unlike garden variety webpages, or other social networking sites, a user’s Facebook page is not open to the general public. A Facebook user must grant access to their page by designating someone as their “friend.”
These Facebook terms have steadily worked their way in to the American lexicon. I was surprised to learn that seemingly new terms such as “friended” and “unfriended” have been in the dictionary for hundreds of years. These social networking sites themselves have been collecting data and studying trends such as national moods and gender stereotypes on a scale never before attainable.
All of this new and exciting technology must exist under laws that were written in a different time. There seems to be a new generational attitude toward the free sharing of electronic information that can have very serious ramifications on legal proceedings, including a personal injury lawsuit. Further, the exchange of information is all now preserved in writing and can be located, scrutinized, and used in a number of ways. In the personal injury context, the issue most frequently contested is privacy.
With increasing regularity, litigants are asking for copies of electronic media including emails, information posted on social networking sites, and even Internet search history. Whether this information is protected as “private” varies to some degree on the parameters of where it is posted.
Under the Fourth Amendment to the U.S. Constitution, a litigant, like any other person, has a right to privacy. Whether this includes a right to privacy in Facebook postings depends on one’s “reasonable expectation of privacy” as put forth in the landmark case of Katz v. United States. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17 (1967). The Fourth Amendment “reasonable expectation of privacy” test involves two questions: first, whether an individual has shown that he or she seeks to preserve something as private; second, whether an individual’s expectation of privacy is one that society is prepared to recognize as “reasonable.” State v. Wacker, 317 OR 419, 427-28, 856 P.2d 1029, 1034-35 (1993); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17 (1967).
The first factor is fundamentally affected by the rules involving who has access to the information put up on a webpage. For example, the default setting for MySpace used to be that anyone surfing on the web could view a user’s MySpace page, unless and until it was “set to private.” Facebook, on the other hand, gives the user the option to control who can view the majority of information on their page. It is very difficult to argue that the information put on your MySpace page – that anyone can view – is information that you sought to preserve as private. There is a better argument when it comes to Facebook, akin to only allowing certain people in to your home, not the world at large. However, the advent of the Facebook timeline, which is by default set to display publically, may change this.
Additionally, under Facebook’s terms and conditions users own the content they type in; however, Facebook owns and may use any content governed by Intellectual Property Rights, such as photos or videos for the time they are up and for a reasonable time thereafter. Thus, an argument can be made that you cannot have a reasonable expectation of privacy in the photos you post, as you have agreed to let Facebook own them, at least temporarily.
The second factor, whether an individual’s expectation of privacy is one that society is prepared to recognize as reasonable, is much greyer territory. Good arguments can be made on both sides, and ultimately the law should reflect the mores and attitudes of society at large. Not surprisingly, there has been very little published case law in Oregon to guide whether postings on sites such as Facebook can be used in lawsuits generally or admitted in to evidence at trial. Often the issue can turn on whether the judge is willing to consider the nuances of the various rules governing the postings on these sites, or whether they take an approach such as “it is on the Internet, therefore there is no expectation of privacy.” Often the decision hinges on how familiar the judge is with the technology.
What does all this mean to people who find themselves in civil litigation? Under Oregon law the discovery rules are very broad. Generally speaking, the plaintiff and defendant are entitled to anything that is either relevant, or “reasonably calculated to lead to the discovery of admissible evidence.” ORCP 36. This is a very wide net. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ORS 40.150. In reality this could be almost anything. Further, the evidence allowed by discovery does not need to be relevant, just “reasonably calculated” to lead to admissible evidence which is even broader.
The rules governing what is ultimately admissible at trial (able to be viewed by the jury) are more stringent and complex. However, it is clear that anything arguably relevant to the lawsuit will be “discoverable” meaning that it must be given to your adversary during the suit. This includes relevant evidence put on Facebook postings, such as photos showing one’s physical capabilities, anything reflecting on the nature or extent of one’s injuries, or financial impact of the incident, just to name a few.
Attorneys cannot counsel their clients to remove things that have already been posted on Facebook, but instead can counsel against putting them up in the first place. Notably, in January 2012 Virginia trial attorney Matthew Murray was sanctioned $542,000 for instructing his client to “clean up” his Facebook page – here is the Order from the Charlottesville Court.
While Courts have not yet gone so far as to order litigants to “friend” their adversaries in the legal process, they typically will order the production of any relevant evidence put up on a Facebook or other social networking site.
Bottom line: if you don’t want the other side to see it, it is wise not to post it up on Facebook.