No matter how strict the privacy settings, Facebook can turn a user's life into an open book. The Stored Communications Act, prohibits an entity, such as Facebook and MySpace, from disclosing information posted by users to their private pages without the account owner's consent. Therefore, in practical terms, litigants cannot obtain current or deleted Facebook or other social media pages and accounts – except for what may be publicly available online – without authorization from the account holder. Litigants may not circumvent this with clever tricks to obtain access to otherwise hidden information. In fact, the New York State Bar Association's Committee on Professional Ethics recently clarified that, while profiles and postings available to the general public are fair game, a lawyer may not view or access, or cause anyone else to access, the private Facebook or other social media website of a party other than his or her client.
To obtain Facebook or MySpace information in litigation, then, one must go to the source. New York courts are reluctant to allow litigants to hide relevant information with self-selected privacy settings. For example, in Romano v. Steelcase Inc., Ms. Romano claimed she sustained permanent injuries and suffered a loss of enjoyment of life as a result of a fall from an allegedly defective office chair. Steelcase Inc., the chair manufacturer and distributor, contended that public portions of Ms. Romano's MySpace and Facebook pages revealed that she had an active lifestyle, traveled, and appeared to be happy in a photograph taken outside of her home, contradicting her claims that she was largely bed- and housebound due to her injuries. The court ordered Ms. Romano to provide authorizations to Steelcase Inc. to obtain her Facebook and MySpace pages, including archived and deleted information, which were not available to the general public, finding that the information on Ms. Romano's social media sites appeared necessary for defense of her claims, and/or could lead to admissible evidence.
Some cases have not reached this same result. In McCann v. Harleysville Insurance Company of New York, on the other hand, the trial court denied Harleysville's motion to compel McCann to authorize disclosure of the contents of her Facebook account. The appellate court upheld this ruling, characterizing the request as a "fishing expedition."
>> The Bottom Line
Restricting access to certain information to a relatively small group of "Facebook friends" does not always protect against disclosure in litigation. Facebook and other social media users may be required by the courts to produce relevant information in the course of a litigation.
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