Growing body of case law suggests Facebook privacy settings do not create a right to privacy for your posts.
If you have been hurt in a traffic accident or premises accident and are now seeking compensation for your injuries and losses, it is extremely important to understand the dangers of posting content related to your case or your injuries on social media and the limitations of the privacy policies offered by social medial sites like Facebook.
Why Personal Injury Defendants Love Social Media
In cases where the defendant’s liability for the accident seems cut and dry, the defense must find other strategies for securing a favorable outcome to the case. Often, they end up focusing on ways to undermine the severity or even the existence of your injuries.
In past decades, defendants had to hire special investigators to surveil plaintiffs in the hopes of catching them acting in ways that would seem to indicate their injuries were not as severe as they claimed. One common tactic was to drop a $100 bill on the sidewalk outside the home of a plaintiff alleging a back injury and then see how easily they bent to pick it up.
Today, no special investigator is necessary. Social media gives us an unprecedented level of access into one another’s lives, and now something as innocent as a photo of a plaintiff smiling through their pain at a family event could easily get into the hands of the defense and be misconstrued as evidence that the plaintiff was well. Even a carelessly worded status update could potentially hurt a plaintiff’s case.
Growing Body of Case Law on Social Media Privacy
Many people continue to use social media throughout their personal injury case because they believe their privacy settings protect them. In reality, a growing body of case law indicates just the opposite. Many courts have rules that data and information posed to Facebook and other social media sites is not subject to special protection, even if it was shared on a private page or network.
One such case comes from Florida, where an appeals court recently upheld an order for a personal injury plaintiff to provide photographs from her Facebook page. The plaintiff, Maria Nucci, had filed a premises accident lawsuit against Target after a slip and fall in a store caused her significant injuries. The photos in question had been posted to Facebook by Nucci, but then removed shortly after these photos were discussed in her deposition.
The plaintiff objected to Target’s request to produce the photos on the grounds that by using Facebook’s privacy settings to protect her data, she had created a right to privacy. She also tried to seek protection under the federal Stored Communications Act. The court found no merit to these arguments, requiring only that social media data requests be “reasonably calculated” to lead to admissible evidence, and arguing that the SCA applies to communication service providers, not individuals.
We have seen similar cases from Michigan, New York, and California.
What to Do If You Have Been Injured
If you have been injured in an accident, it is very important to contact a personal injury attorney before you post any comments at all on social media. Be especially careful not to admit fault in any way.
