Connecting to friends, relatives, co-workers and even complete strangers on social media platforms like Facebook and Twitter have become the norm. It’s second nature for someone to “check in” to their favorite restaurant after arriving or to snap an Instagram photo of the meal once it arrives, so everyone can see how great it looks.The mistake people make is in assuming such information is private. The reality is, no matter what your privacy settings, those posts and images can be accessed by the outside world. They are even discoverable in court. Seemingly innocuous posts could potentially have the impact of damaging your case, if you aren’t careful.
Where it is usually most relevant in an injury lawsuit is in giving the defense ammunition to dispute the severity of one’s injury.
This was the assertion in a Florida case earlier this year, Nucci v. Target Corp., which was a slip-and-fall action before Florida’s 4th District Court of Appeal. In that case, plaintiff sued the box store for negligence, alleging her slip and fall resulted in her suffering bodily injury, pain, physical handicap and and emotional pain and suffering, in addition to to to other losses.
Two days before deposition, a lawyer for the company noted plaintiff’s Facebook profile page contained 1,285 photographs. However, two days after the deposition, her profile page contained only 1,249 photographs. She had deleted about 35 photos. It’s not clear why or whether it had anything to do with this case.
But based on this, and the fact defense lawyers asserted it was her mental and physical well-being at central issue in the case, it had the right to view those photographs (which were taken before and after the alleged incident) as well as prohibit her from deleting anything else.
Plaintiff argued, however, that since the social media platform was created, it has offered privacy settings to individuals that prevented the public from having access to that account, and she had a reasonable expectation of privacy for the material she posted there. She also asserted defense’s motion was over broad.
In support of its motion, defense produced surveillance footage taken after the incident of plaintiff carrying two jugs of water and two purses on her shoulders. This, they said, was evidence plaintiff was exaggerating the extent of her injuries, and this bolstered its assertion she may be hiding more on her social media profile.
Trial court granted the motion, and plaintiff appealed, arguing an invasion of privacy.
However, the appeals court affirmed. It agreed that generally, photographs posted on Facebook or any social media platform is neither protected nor privileged, regardless of one’s privacy settings. The expectation of privacy on social media is not a reasonable one, the court ruled. The court noted previous decisions in which it was indicated social networking sites provide a veritable treasure trove of information for litigation.
But the key is to make sure whatever is uncovered can work in your favor – not the other way around. This is a conversation you must have with your Fort Myers injury lawyer even before the case is filed. It could be there is some information or image that would be more harmful to your case than others. Talking about it early on in the process can help avoid unexpected problems later in the case.
If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Nucci v. Target Corp., Jan. 7, 2015, Florida’s Fourth District Court of Appeal
More Blog Entries:
Auffret v. Capitales Tours – Motor Coach Accident Lawsuit, Aug. 28, 2015, Fort Myers Auto Accident Lawyer Blog