In 2008, approximately 24% of Americans possessed a social media profile. According to recent studies, that number has increased to approximately 78% in 2016. While different generations use varying social media sites, it is now common place for nearly 4 out of 5 people to have some kind of on-line presence.
Social networking and media sites are designed for people to share many details of their lives in a public forum. Even those who are not interested in sharing on social media are often “tagged” in posts and photos by friends and family. Whether or not that person wants their name and photo in the public domain, more often than not tagged photos are shared in a public space without consent. It is not outside the realm of possibility that a post someone believes is private could be seen by thousands of people.
Social Media and Litigation
People generally share photos and content across social media sites in a carefree way with little thought of any future impact. However, social media has become fertile ground for trial attorneys seeking discovery in litigation. Anyone involved in any type of litigation dispute should be conscious of their social media presence at all times. And, any litigant needs to understand the information they are posting on their social media accounts is for public consumption even at the highest level of privacy settings.
Speak to Your Personal Injury Lawyer about Your Social Media Accounts
The risks posed by such social postings are particularly relevant to the individual personal injury litigant as this information becomes “discoverable” to the opposing parties in litigation. The case of Nucci v. Target Corp. from the State of Florida directly illustrates the pitfalls social media can pose to a personal injury plaintiff. In that specific case a woman initiated a lawsuit versus Target arising out of a slip and fall at one of its stores. She sought a variety of damages, including physical injury and emotional pain and suffering. Target moved to compel over 1,200 photographs from plaintiff’s private Facebook account as being relevant to her physical and emotional condition both before and after the incident. The trial court ordered production of the photos and an appellate court affirmed that order. Importantly, the appellate court held that the plaintiff did not have an expectation of privacy nor were any of the photographs privileged from production once posted on her Facebook account in the public domain regardless of her privacy settings. The photos were deemed highly relevant information to either corroborate or directly contradict her claimed damages arising out of the slip and fall.
How Social Media Backlash Can Impact You and Your Chicago Personal Injury Lawyer
Illustrated in a hypothetical but very real context, imagine a personal injury plaintiff who claims the inability to work because he cannot lift his arm above his shoulder is seen in a social media post innocently holding his young child above his head while on vacation. This type of evidence could totally end a case. In the very least, it will potentially lessen its value. This is just one illustration, but examples are endless and the potential impact of such evidence being seen by a jury in a court of law is seemingly on the rise.
Social Media and Defamation of Character Entanglements
In addition to sinking a plaintiff’s case, a recent Illinois case entitled Pomerhantz v. TaylorNations illustrates how “heat of the moment” and highly personal social media posts can find you in a court of law as a civil defendant. In that case, during the course of a divorce a wife posted several disparaging comments about her husband, including statements to his truthfulness and integrity. Many of the posts were commented on by others and shared amongst friends (who as we all know sometimes aren’t actually “friends). The husband sued the wife for defamation of character and claimed the comments, which were seen by hundreds of Facebook users, significantly impacted his ability to find a new job. The husband was laid off and unemployed at the time of the incident. While the matter was ultimately dismissed by the court on other grounds, it took years of litigation and presumably significant expense. If the posts had not been put into the public domain via social media then the lawsuit never would have existed in the first place.
In a Lawsuit You May Be Forced to Share Your Social Media Login Credentials
Lastly, and particularly relevant, many courts have compelled individual litigants to give attorneys representing their adversarial parties their social media site login information and passwords. This allows the opposing party to directly access the social media page and can lead to complete unfettered access to voluminous personal information. This exact scenario occurred in the Pennsylvania case of Largent v. Reed, where a plaintiff initiated a lawsuit against another driver subsequent to a car crash. The plaintiff admitted she had an active Facebook page on the date of the incident to the time the she gave deposition relative to her case. While plaintiff claimed injury impacting her ability to enjoy daily living, it was learned she posted several photos of herself on her Facebook page “enjoying life with her family.” As a result, the court ordered that she provide her Facebook login and password information to the attorneys representing the other driver for seven days so they could discover and print-out any information relevant to the case. While this drastic measure has found resistance by other judges, it remains an appreciable risk to any individual litigant.
Social Media Privacy Measures Aren’t As Private As You Think
Simply put, social media has unquestionably changed the way people communicate with one another. The privacy of social media posts are nearly non-existent and in a court of law almost always considered to be within public domain and ripe for discovery. Such communications and posts can and often will be discoverable for all adversarial parties to see and for a jury to weigh in on when deciding the merits of a case. Anyone involved in a litigation should be aware that any picture or statement shared on a social media account can be seen by more than just your friends and followers.