Social Media Posts Protected by Privacy Settings Are Admissible in Court

Posted in Invasion of Privacy at 3:35 pm by kevin

Even though you’ve meticulously adjusted your privacy settings on Facebook so that only “friends” can see your posts, pictures and activities, this doesn’t mean that they aren’t admissible in court.

This was the case in Nucci v Target Corp., et al where the District Coourt of Appeal of the State of Florida, Fourth District upheld the order of a lower court necessitating that plaintiff Maria Nucci provide photographs originally posted on her Facebook page. According to the court, there is little right to privacy in photos posted on Facebook or any other social networking site.

Nucci is claiming personal injuries against Target when she slipped and fell on a foreign substance in one of their stores. Although she was claiming injury, the photos posted to her Facebook showed otherwise, and that was the issue on appeal. Nucci posted over 30 photos to her Facebook but subsequently deleted them after the pictures were brought up during her deposition.

Nucci didn’t agree with the request of Target to produce the photos because her use of privacy settings meant she had a right to privacy and that the federal Stored Communications Act disallowed the disclosure of her Facebook photos. However, the court argued against that because the photos goes against her damages claim.

This decision by the court isn’t the first of its kind. In Tompkins v Detroit Metro. Airport, the US District Court for the Eastern District of Michigan ruled that material shared to friends on a private account and is not viewable by the public is not protected by common law or civil notions of privacy.

Another similar decision was made by the New York Court of Appeals in the case Patterson v Turner Constr. Co. stating that posts made to a Facebook account, if relevant, are not exempt from discovery just because the plaintiff has restricted access to them.

The United States District Court for the Central District of California in the Mailhoit v Home Depot USA Inc case noted that content posted to social media are neither privileged or protected and requests for information should be reasonably calculated in order to lead to admissible evidence.

Going back to the Nucci case, the Florida Appellate Court agreed that discovery requests should be reasonably tailored in order to lead to discovery of admissible evidence. Meaning, Target’s request met that standard.

With regards to the SCA, the court maintained that the SCA disallows providers of communication services from releasing private communications of users, but it doesn’t apply to the individual users themselves.

The court also rejected the relevance objections of Nucci stating that when personal injuries and quality of life are discussed, what one posts on their social networks equals “a day in the life” and are relevant to the damage claims.

Lessons are to be learned for both the defense and the plaintiff’s defense in this case. For the former, they can use social media content as evidence whenever there is a personal injury claim so they can check relevant information regarding the physical injuries and quality of life of the plaintiff.

The latter can check on the social media posting of their client so they can develop a more accurate picture of the scenario that is to come – the challenges, etc. The last thing any lawyer wants is to defend a client who claims to have suffered emotional and physical injuries only to have a photo of them climbing up a mountain presented during deposition.


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