Did you really think you had a constitutional right to privacy on Facebook? Well, you don’t. Yesterday, January 7, 2015, the Fourth District Court of Appeal concluded that there is “no constitutional right to privacy on Facebook, and it’s not reasonable to expect otherwise.” While this decision takes the side with colossal retailer, Target, against a shopper who filed a slip-and-fall personal injury case, this truly is not a surprise to us at Khani & Auerbach.
Over the years, we have been advising our clients and friends that you DO NOT have any reasonable expectation of privacy on any social media. Furthermore, expect that once your Status Update, picture or opinion goes onto social media, anyone can really gain access to it.
In this particular case, Maria Leon Nucci and husband, Henry Leon, filed a case against Target for a slip-and-fall., claiming the store fall caused injury, medical expenses, lost earnings and other damages. In an effort to defend itself against the suit, Target’s attorneys did what would be expected and began discovery by going through the plaintiff’s/shopper’s social media profiles two days before Target deposed her back in 2013. The attorneys examined Leon Nucci’s Facebook page, which they claimed displayed 1,285 photos, but then, they noticed that the numbers of photos on the profile had been reduced to 1,249. Target wanted to examine the entire profile and claimed they were entitled to do so. They motioned with the court to compel Leon Nucci to preserve her Facebook photos. But, don’t be naïve, that’s what lawyers do, they examine EVERYTHING to see what ammunition they can “discover” to use against the other side.
Favoring the retailer’s discovery efforts, Broward Circuit Judge John J. Murphy ordered Leon Nucci to disclose all social media sites she used along with providing her cell phone numbers and service carriers. The order also included a requirement to provide screen shots of photographs associated with the accounts and a list of incoming and outgoing cell phone calls on the day of the fall.
4th DCA Judge Gross, writing for the unanimous opinion wrote, “This case stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in Florida in a civil case.” Judges Matthew Stevenson and Jonathan Gerber concurred.
Affirming the decision by Broward Circuit Court Judge John J. Murphy, the 4th DCA judges concluded that users of Facebook and other social media sites have “no reasonable expectation of privacy.”
After becoming aware of this decision, you may ask, where does that leave me as a social media user? Well, one can easily just avoid posting things online all together, that would obviously be the safest and simplest route. If you don’t like that option, I can recommend that you be more cautious about what you do post. For example, if you go out to a bar, don’t go posting pictures of yourself with a drink in your hand or even posting any pictures for that matter, especially if you are driving. If you get pulled over for a DUI, you can definitely expect that the prosecutor will do extensive discovery and rifle through any and all of your social media pages, looking for those pictures of you at bar. As the 4th DCA aptly stated, you don’t have any reasonable expectation of privacy on social media.
Khila L. Khani, Esq.