Right to Absolute Privacy on Social Media Sites is "Wishful Thinking": Court

Planning on uploading those festive water-skiing pictures to MySpace, or that “funny one” with you skateboarding while balancing a latte on your head to Facebook?

Go for it –just make sure that you aren’t trying to win a personal injury suit at the same time; one that claims you can’t do the things your MySpace and Facebook pages show otherwise.

At least, that’s one bit of wisdom the plaintiff in Romano v. Steelcase, Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) can glean, now that the courts have ruled she must grant the defendant access to her social media files.

At issue are photographs that were previously published by the plaintiff on her Facebook and MySpace pages, which the defense claims are full-color, digital proof that her injuries aren’t…injurious.

The plaintiff argued that granting the defendant access to her social media accounts would be an invasion of privacy.

The defense countered by saying it tried – and failed – to obtain the evidence through deposition. The court ultimately agreed with that argument, stating that the photos in question were “contrary to [the plaintiff’s] claims and deposition testimony,” and that “there is a reasonable likelihood that the private portions of [the plaintiff’s] sites may contain further evidence … which are material and relevant to the defense of this action.” 

The court’s ruling has captured attention far outside the personal injury litigation space, since it goes to the heart of a controversy that is certain to get bigger (and probably more litigious) before it’s resolved: social media privacy rights.

To that point, the court stated that the plaintiff’s privacy rights were “outweighed by Defendant’s need for the information.” And to underline the point and send a message that would be heard ‘round the country, the court added:

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.  Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.  Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.  As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

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