Do you have a reasonable expectation of privacy in social network posts? No, here is why …

Social Media SwirlThere is no reasonable expectation of privacy in information you post on social networking sites, regardless of what privacy setting you use.  

That is the rule that can be taken from Nucci v. Target Corp., a recent opinion from an appellate court in Florida. The court’s rationale is set out below, with citations omitted:

We agree with those cases concluding that, generally, the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established. Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. “Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist.” 

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.
As one federal judge has observed,

Even had plaintiff used privacy settings that allowed only her “friends” on Facebook to see postings, she “had no justifiable expectation that h[er] ‘friends’ would keep h[er] profile private. . . . ” In fact, “the wider h[er] circle of ‘friends,’ the more likely [her] posts would be viewed by someone [s]he never expected to see them.” Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions.

We distinguish this case from Root v. Balfour Beatty Construction, LLC. That case involved a claim filed by a mother on behalf of her three-year-old son who was struck by a vehicle. Unlike this case, where the trial court ordered the production of photographs from the plaintiff’s Facebook account, the court in Balfour ordered the
production of a much broader swath of Facebook material without any temporal limitation—postings, statuses, photos, “likes,” or videos—that relate to the mother’s relationships with all of her children, not just the three year old, and with “other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident.” The second district determined that “social media evidence is discoverable,” but held that the ordered discovery was “overbroad” and compelled “the production of personal information . . . not relevant to” the mother’s claims. Id. at 868, 870. The court found that this was the type of “carte blanche” irrelevant discovery the Florida Supreme Court has sought to guard against. The discovery ordered in this case is narrower in scope and, as set forth above, is calculated to lead to evidence that is admissible in court.

Thanks to my friend Dale Rodriguez for bringing this case to my attention.

4 thoughts on “Do you have a reasonable expectation of privacy in social network posts? No, here is why …

  1. Shawn Tuma:

    Thank you for your effort in posting this article on the common law in the State of Florida on this issue.

    In the future, please indulge me in suggesting that the topic of your articles state the jurisdiction(s) to which each of your articles is limited. For example, I suggest that this particular article be retitled, instead, as “Do you have a reasonable expectation of privacy in Florida in social network posts? No, here is why in Florida…” By that style, those of us outside Florida can decide whether to read an article on the common law limited solely to Florida.

    I am sure that, were I to post an article titled “The Family Law Implications of the Sex Habits of Seahorses,” attorneys in Florida would appreciate knowing in advance of its reading that the article was limited to Longhorn Law because the sole cited authority was a decision of one of Texas’ 14 courts of appeals and was not a decision having application outside of Texas.

    Again, thank you for your time in generating this posting!

    Roger T. Yokubaitis
    Houston, Texas.

    1. Roger, thank you for your comment and for reading the blog, as well as your thoughtful suggestion.

      There are a few reasons why I do not title my posts in such a limited way. First, it would be difficult to formulate tweetable titles that contain every caveat that one may need to ensure that the post they are reading is germane to their specific jurisdiction, their particular field of law, etc. and I do good just to find time to write the dang things, much less go back and try to have such specificity! In this particular post, after the synopsis, the first line of text reads “That is the rule that can be taken from Nucci v. Target Corp., a recent opinion from an appellate court in Florida.”

      I hope it did not take too much of your time to get to that point and move on to the next article but for any inconvenience it may have caused, I do apologize. While I certainly appreciate having you as a reader, I do need to say for future reference, do not expect this blog to be limited to or even focused on Texas law. My purpose of this blog is to share information and ideas, not serve as a legal digest (which I actually tried to do, with specificity to jurisdiction and all, on http://www.cfaadigest.com and it did not work well), thus the main point of what I share is to discuss legal concepts and trends. While I am in Texas, very few of the cases I have mentioned on this blog come from Texas — and when they have, they are usually interpreting the federal Computer Fraud and Abuse Act.

      Now, having said all of that, as for this particular case, as an attorney trying cases in Texas courts, I found it to be particularly relevant and important to Texas jurisprudence because (to my knowledge) no Texas court has delved this deeply into the analysis of privacy objections to social media evidence and this case represents a consistent trend with how courts in sister-states are treating the issue. Thus, should you or any other Texas lawyer face this issue in their case, utilizing the common law method which was explicitly adopted by the Texas Supreme Court back in the 1800s, this may very well be the more persuasive “authority” out there to support your argument because, in such situations, the courts recognize that the issues have not been decided and there is no precedent, thus, stare decisis does not apply. They then look for other things — guide posts — to direct them on how to formulate a solution for the case before them. In such cases, the courts frequently look to decisions from other states and this would be one of them. This is an evolving area of law in Texas and in other states, so the reasoning of these cases can sometimes be more important than the jurisdiction from which they spring. So, if you ever find yourself in such a situation, I hope you remember this post and know right where to go to make the argument that carries the day!

      I appreciate your suggestion Roger, and I also appreciate the opportunity to explain why I sometimes share information that others may not see as being particularly relevant. Thank you again, have a great week!

      -Shawn

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