How Private Are Your Private Facebook Posts?
Published on Jul 02, 2019
A major decision by a New York State court ruled on whether someone who is suing another because of injuries can be compelled to give private social media posts to the defendant.
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PRESENTATION OUTLINE
How Private Are Your Private Facebook Posts?
A presentation by Big I New York
Insurance companies and others have been using social media posts to investigate claims for years.
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Some people may assume that, if their Facebook accounts are set up to be accessible only to friends, their posts are private.
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They think an employer, business or insurance company cannot legally look at their private posts.
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Actually, they can and they do.
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In 2018, New York's highest court was asked to decide a dispute over whether someone suing another could be forced to disclose photos posted on Facebook.
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A woman suffered spinal and brain injuries in a fall from a horse. She developed loss of memory and intellectual ability, trouble communicating, and social isolation.
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Before her accident, she posted many photos of her active lifestyle on Facebook. She deactivated the account after the accident.
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She sued the horse's owner. In turn, he demanded access to her entire private Facebook account, saying the photos and posts were material to his defense.
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When she refused, he asked the court to make her give him access. He said the photos and posts were evidence of her lifestyle before and after the accident.
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She argued that her public Facebook account contained a photo that did not contradict her claims, and therefore he didn't need access to the private account.
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The trial court ordered her to turn over some of her private Facebook material. The appeals court limited what she had to provide. The horse owner took it to the NYS Court of Appeals.
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The Court of Appeals ordered her to disclose all private photos of herself posted on Facebook before the accident and that she planned to produce at trial.
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It also ordered her to disclose all post-accident photos of herself (other than romantic or intimate photos) that she posted before closing her Facebook account.
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It also ordered her to authorize Facebook to release records showing the time and number of characters or words in each post she made post-accident. This was to show the effect on her ability to write.
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"... (E)ven private materials may be subject to discovery if they are relevant ... (W)hen a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records ... are waived ..."
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"For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information."
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Therefore, in a lawsuit or an insurance claim, private social media records must be disclosed if there's a reasonable possibility that they contain information relevant to the case or claim.
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Anyone seeking insurance benefits for an injury should expect that their social media records will be requested.
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The text of the opinion is available at http://www.nycourts.gov/
ctapps/Decisions/2018/Feb18/
1opn18-Decision.pdf
How Private Are Your Private Facebook Posts?
A presentation by Big I New York
