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Social Media: Be Careful what you “Like” on Facebook

While social media’s place in the courtroom is still developing, courts across the country are considering Facebook “posts” and “likes” in lawsuits. Some courts have allowed evidence of a party’s social media page in a variety of cases. “Wall posts,” “Tweets” and photographs from a party’s social media page have been offered into cases claiming personal injuries, loss of enjoyment of life, sexual harassment and a variety of other claims.

Some United States Courts have held that privacy settings on a social media page will notprevent discovery. In EEOC v. Simply Storage Management, the court held that “any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries)…that reveal, refer or relate to any emotion, feeling or mental state” were discoverable by the opposing side.

A Virginia court in Ebersole v. Kline-Perry allowed the amount of “likes” to come into trial in a libel suit to prove that the defendant “published” a libelous letter. The court explained, “The number of ‘likes’ on [the defendant’s] Facebook page is indicative of its popularity. The greater number of ‘likes’ on the page, the more likely it is that others visited the page and viewed whatever the defendant posted there….” The court held that the evidence was relevant to show “how widely disseminated the letter was” and to prove the defendant’s “intent in posting the letter-namely to reach a large audience.”

A Pennsylvania court in Zimmerman v. Weis Markets, Inc. found that privacy concerns are reduced when a plaintiff chooses to disclose information on their social media page. The court reasoned that “based on what was observed on the publicly available portions of Plaintiff’s Facebook and MySpace profiles, Defendant believed there may be other relevant information as to Plaintiff’s damage claims on the non-public portions.” The court ordered the plaintiff to provide all usernames, log-in names, and passwords for his MySpace and Facebook accounts and ordered him not to delete or alter existing information/posts.

On the other hand, some United States courts have invoked protection of one’s social media page. In Crispin v. Christian Audigier, Inc., the court did not allow the opposing side to retrieve information from the plaintiff’s Facebook page because the plaintiff had a “personal right in information in his or her profile and inbox on a social networking site…in the same way that an individual has a personal right in employment and bank records.”

Clearly, laws regarding social media are in early stages of development. While some courts are developing privacy rights to one’s social media page, it is difficult to determine what one judge will do in a particular case. Because the current court decisions concerning social media in the courtroom are conflicting, it is important to be cautious about what you “post” on Facebook or “Tweet” on Twitter. It is in the best interests of those using social media sites, both individuals and businesses, to be vigilant with respect to the content posted and stored on social media websites. Without further developments in the law, one should assume no privacy and take measures to protect and limit their social media content. As the Zimmerman court put it: “any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.”