Today it’s reported that 58% of American adults use Facebook, 17.5% use Instagram, and 50% use tumblr. Social media websites sometimes offer users the option of disclosing postings, including photographs, to different sets of other users. On Facebook, for instance, postings can be made available to the public, to only “friends” (those users who are connected to the posting user), or to “friends of friends” (those users connected in the second degree to the posting user). These “privacy settings” limit the initial publication of the posting, though the users who are authorized to view the photos are not prevented from disclosing them more broadly.
If photos are shared only with “friends” or other group and are not open to the general public, are they fair game to be turned over in injury cases? A recent Florida appellate decision found yes. Photographs posted to Facebook by a plaintiff were discoverable despite not being disclosed to the general public on the site. Plaintiff Maria Nucci sued Target for a slip and fall injury that she allegedly suffered at one of their Florida stores.
Ms. Nucci refused to produce photographs of herself that she had posted to Facebook, claiming that the photos were private. Lawyers for Target argued that the photographs were relevant to demonstrate the severity of Ms. Nucci’s injuries, and that she was not entitled to privacy protection for photographs posted on social media. Target’s legal team pointed to a surveillance video showing her carrying water jugs after her incident, and argued that this showed that her injuries were not as severe as she claimed in the lawsuit, and therefore that the Facebook photos were relevant to shed further light on her injuries.
The Florida appellate court ordered Nucci to turn over the photos, even though they weren’t publicly available. The rationale was that because she had shared them with friends, she could not expect that the photos would stay private. The court ruled that Nucci “has but a limited privacy interest, if any, in pictures posted on her social networking sites. … Because ‘information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another,’ the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.” The court found that the relevance of the photographs, as demonstrated by the surveillance video, outweighed her limited privacy interest in the photographs.
The Nucci decision is one of several recent decisions coming down in favor of very limited privacy protection for social media postings. State and federal courts in New York, Michigan and California have all made similar decisions in the recent past. Early identification, and collection, of available social media evidence is quickly becoming an essential first step in the defense of any personal injury claim, as courts are becoming more willing to compel production of these social media postings.