Facebook and MySpace communications are not confidential! At least according to a Pennsylvania court’s reading of the state’s discovery rules, which it found did not create a so-called “social network site privilege.” And if one reads carefully, Facebook and MySpace’s own policies offer no additional protections.
In McMillen v. Hummingbird Speedway, Inc., the plaintiff (McMillen) sued to recover damages for allegedly disabling injuries suffered during a stock car race in 2007. The complication comes from plaintiff’s subsequent postings and communications to friends on Facebook and MySpace that chronicled a fishing trip and trip to the Daytona 500 races. Engaging in such activities suggested plaintiff was much less disabled than claimed.
Defendants saw the public portion (and damaging information) of plaintiff’s Facebook account and filed a motion to compel discovery to obtain access to plaintiff’s passwords, user names, and log-in names because access could produce further evidence to defeat plaintiff’s damage claims. In particular, defendants wanted to determine whether plaintiff had engaged in other activities that may have contradicted his claims that he suffered severe physical impairment as a result of the accident.
The plaintiff asserted that any communications on Facebook and MySpace were protected by a right of privacy. The court rejected this point of view, stating that there was no persuasive authority to support this claim. The court also stated that Pennsylvania’s discovery rules were quite broad and that its courts regularly decline “to extend the scope of existing privilege” beyond statutory language. The court also noted that a new evidentiary privilege will not be created unless a party shows four things:
In finding that these conditions had not been met, the court needed only to turn to the Facebook and MySpace user agreements. In Section 3 of the Facebook Privacy Policy, the site warns that even when deleted, shared information may be accessible on another user’s page. Additionally, in Section 6, Facebook states that it will share information if subpoenaed or if requested as a means of preventing fraud or illegal activity. Similarly, MySpace’s user agreement provides that it may scrutinize a user’s communications at any time and for any reason.
Applying the other factors, the Court found that the relationship between plaintiff and his friends was not predicated on confidentiality, nor does the community (or law) have an active interest in ensuring that friendships are confidential. Additionally, loose lips among friends may cause damage to a relationship, but that is not the law’s concern. Finally, the benefit in allowing the law to protect communications among friends does not contravene the interest in discovering fraud that plaintiff may be perpetrating.
Ultimately, the court compelled plaintiff to release the access information for his social networking pages to defendants. As an ever-increasing number of people join social networking websites, McMillen provides a valuable lesson. Be highly conscientious about what information you post– you never know who may be reading (or what you may have to turn over in a lawsuit)!
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April 6, 2011 at 7:03 PM
Did the Judge grant defendant’s motion in its entirety? I wonder if there were (or should have been) any limits on the discoverability of plaintiff’s social networking accounts. In D.M. v. J.E.M., 23 Misc. 3d 584, 873 N.Y.S.2d 447 (N.Y. Fam. Ct. 2009), access to a party’s personal email account was limited to emails between the parties and within a specified time period. What’s the difference between that and the private message functions on social networking sites?
April 6, 2011 at 10:24 PM
This decision should be handed out to clients everywhere. There are millions of facebook users worldwide, a large majority of which, likely have no idea how their facebook activities can potentially effect any of their future or current lawsuits. People tend to think that facebook is its own little private bubble that no one from outside of facebook can see – facebook users are willing to post pictures, statuses, videos, etc. that let the entire world know intimate details of their private lives. This decision is so important, on a legal as well as personal level, because it really shows individuals exactly what “privacy settings” mean and what they should and should not reasonable expect to be kept confidential and private.
April 11, 2011 at 4:59 PM
I think there should be a social networking site privilege. As mgriffin says people are completely unaware of their privacy on social networks and that nativity is being passed to younger generations. With the frequency of social network use and the idea that technology is allowing massive amounts of information to be saved forever it could be possible to search someone’s entire digital life. Will a background check consist of these chats? Will you have to explain yourself?