No Matter Your Privacy Setting, Facebook and MySpace Accounts Are Not As Private As You May Like
Michael H. Fienman, Esq. on 5/5/2011
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Law Office of Michael H. Fienman, LLC
McMillen objected to the disclosure on grounds that the non-public content was, by virtue of his privacy settings, private and confidential communications among online friends or users of the social media networking sites in at issue. McMillen requested that the Court recognize these communications as confidential and thus protected against disclosure.
The court held that plaintiff did not satisfy the requirements to support a finding of privilege and that those who use social media networking sites could not reasonably expect communications and content posted to social media sites to remain confidential because the terms and privacy policies of sites like Facebook and MySpace allow site administrators (a third party) to view all content stored in user accounts. In its reasoning, the Court noted that under Pennsylvania law, evidentiary privileges are disfavored and narrowly construed. Further, the Court stated that, under these facts, the overriding objective to uncover truthful information in the prosecution or defense of a civil lawsuit far outweighs non disclosure. Ultimately, Foradora required McMillen to turn over his Facebook and MySpace user names and passwords to Defense counsel. Defendants were to be provided with read-only access to McMillen’s social media accounts. The Order also specifically forbid McMillen from taking any action to delete or alter any existing information contained in his accounts. Is this surprising? No, not really. The general principles of discovery are neither new nor novel; however, their application by the Jefferson County Court is demonstrative of how the law can adapt to handle twenty-first century technology. Photos, status updates, profile information, invitations, friend requests, notifications and even messages between users, are all potentially discoverable. Now more than ever, it is important to monitor one’s online presence and ensure that the content posted or information shared with others is of the type that was intended to be made public. Until higher courts rule on these issues, litigants ought to assume that the content stored on their social media accounts is discoverable, regardless of privacy settings. For most individuals, this means exercising caution, common sense, and a general awareness of what they are uploading on the social media site. Businesses must also be prudent when it comes to social media. Training employees on proper usage and implementing social media policies that clearly outline the organization’s expectations are critical to managing the potential risks associated with an employee’s use of social media.
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