It’s that time of year…the beginning of summer and that means school graduations, road trips, family vacations, good times at the beach. Smartphones make it easier than ever to take pictures and video of these happy events and to share them on Facebook. It just feels good to share these occasions on social media!
If you have your privacy settings enabled, you may expect that your pictures will remain private and only seen by your “friends.” After all, they are called “privacy settings.” However, if you’re injured in an accident and have to file a lawsuit, the insurance company and defendant may be entitled to use your supposedly private posts against you. What’s worse is that a judge may compel you to turn that information over to them!
In a case named Nucci v. Target Corporation, the plaintiff in a slip and fall case was requested to identify all of her social media accounts and provide the defense with photographs she posted both before and after the accident. Ms. Nucci objected on privacy grounds. In overruling her objection, the Court explained that “before the right to privacy attaches, there must exist a legitimate expectation of privacy.” In the case of social media, photos posted may be copied and disseminated by others, and therefore, there is no legitimate expectation to privacy according to the Court.
Ultimately, Ms. Nucci was required to disclose all of her social and professional networking accounts (such as Facebook, MySpace, LinkedIn, Meetup.com, MyLife, etc.) and to provide the defense with copies of thousands photographs posted during the two years before her injury, as well as all photographs posted after the accident. She even had to turn over pictures stored on her cell phone!
Why were pre-accident photos relevant? In a personal injury case, a jury is required to consider the quality of the plaintiff’s life before and after the accident to determine the extent of the loss. According to the Court, “if a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the…accident causing injury.”
At Lesser, Lesser, Landy & Smith, we remind every client to be aware that their social media posts may not be private (even with privacy settings in place) and thus, to be mindful of what they share on social media.
The article was written by Partner Steven Clarfield