Published in the Union Leader
Q: Do I have to share “personal” and “private” Facebook information in a lawsuit?
A: Most often, yes, because when it comes to social networking sites, there is little that is truly personal or private.
Social networking sites have over one billion users worldwide. Facebook, alone, is approaching one billion and has over 150 million in the United States (an estimated 40% of the U.S. population). Facebook users in the United States spend over 50 billion minutes per month on the site—the equivalent of 100,000 years—engaging in a whole host of activities, such as posting pictures and videos, giving status updates, or making comments on their friends’ Facebook walls. Twitter is not far behind with over 100 million U.S. accounts and in excess of 400 million tweets per day worldwide. Given that these sites are “social,” it should come as no surprise that users often do not think critically about the content of their posts, or believe the information is personal and private because only “friends” can see it.
Courts, however, are finding that parties in lawsuits must disclose information posted on social media sites, and some courts are compelling parties to turn over their log-in information to opposing counsel. The information subject to disclosure may include publicly accessible portions of the site, as well as what is available only to friends. But if your friends “tag” you in any posting, that information is shared with others, not just your friends. Generally, for a party to obtain information available only to friends, there must be some evidence found in the public view of that party’s profile that is relevant to the case. Of course, if your “friend” is the opposing party, this limitation would not apply, and it raises the question—especially in the context of employment and workers compensation disputes— about whether to be connected on these sites with co-workers and supervisors.
Social networking sites let us communicate more easily, with more people, than ever before. With the click of a button, or the touch of an app, we can connect or reconnect with family and friends and share photographs and videos of birthdays, holidays, cookouts, and our most recent vacation. But you also must know that information posted to these sites is not personal and private and may become public and shared with others in a lawsuit. Staying vigilant and scrutinizing this information is a must.
Joel Emlen can be reached at firstname.lastname@example.org.
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