Litigants’ privacy interests in social media posts

In Florida, there are several types of damages an injured person may be able to recover from the responsible party. Pain and suffering damages is one aspect of these damages. Since pain and suffering damages are intangible, to determine the extent of these damages in a personal injury case, jury examines the quality of the injured person's life before and after the accident.

A photograph is worth a thousand words - there is no better depiction of the injured person's life before and after the accident than the photographs he or she shared through social media. Such photographs could be a very powerful tool for defense lawyers to attack pain and suffering damages in the lawsuit when the quality of life pre-accident and after the accident has not changed. As a result, social media sites can provide a "treasure trove" of information in litigation.

Therefore, the defense attorneys frequently request production of the injured person’s social media materials. Permissible scope of discovery in litigation in Florida is broad. Any matter that is relevant to the litigation may be discoverable, including any materials posted on Facebook. As a recent Florida case Nucci v. Target, 40 Fla. L. Weekly D166a (Fla. 4th DCA January 7, 2015) reiterates, there is no absolute expectation of privacy on Facebook for personal injury claimants. If the defense attorney is able to demonstrate that the relevance of the photographs posted on Facebook overwhelms the minimal privacy interest the injured person may have in them, the court has broad discretion to allow production of Facebook photographs.

It is true that the Florida Constitution expressly protects an individual's right to privacy. However, before the right to privacy attaches, there must exist a legitimate expectation of privacy. There are several case precedents establishing that generally, the photographs posted on social networking sites are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established. Because information that an individual shares through social networking sites like Facebook may be copied and distributed by another, the expectation that such information is private is not a reasonable one.

In fact, Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Facebook also reserves the right to access, preserve and share the information in response to a legal request or to detect, prevent and address fraud and other illegal activity; to protect itself, the user and others, including as part of investigations; or to prevent death or imminent bodily harm.

The advice from our law firm to not just our personal injury clients, but to all social media users is to assume that everything you post on the Internet is a fair game for discovery in litigation. Do not be misled that by shielding your social media account with the highest privacy settings you can insulate your information from discovery in litigation.

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