It may seem like an invasion of privacy, but your Facebook comments can be used against you in a New York court. Judges determining admissibility do not consider your privacy settings particularly relevant. Even if your account is password-protected and you’ve adjusted your settings to restrict access, Joseph Tacopina explains that opposing counsel can still subpoena your posts. The bottom line is that once you share a comment on a public website, you no longer have a reasonable expectation of privacy over its content.
This electronic discovery (e-discovery) rule has its foundations in the New York Supreme Court (NYSC) decision in Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 2010. In that case, the court ruled that a plaintiff who alleged permanent physical injuries did not have a legitimate expectation of privacy in her Facebook and Myspace accounts, saying,
[I]t is reasonable to infer from the limited postings on Plaintiff’s public Facebook and Myspace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity [to] access these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.
At the end of the day, the plaintiff in this case was ordered to turn over access to current and historical information relating to her “activities and enjoyment of life.” Needless to say, this plaintiff’s social media posts exposed evidence that contradicted her claim of a permanent disability.
Laws regarding e-discovery vary by jurisdiction, and there is no consensus among the states and the federal government regarding the privacy of social media posts. Joseph Tacopina is well-versed in legal matters, and when in doubt about whether your social media posts may be admissible as evidence in a court of law, it is best to consult an experienced civil litigator who can help you understand your legal rights and options.