"Private" Facebook and Other Social Media Pages Are Subject to Only Limited Constitutional Rights of Privacy and May Be Discovered in Litigation

HIGHLIGHTS:

  • A Florida appellate court has ordered a plaintiff to produce photographs from her "private" Facebook page in an important decision holding that Facebook users' privacy interests in the content they post – regardless of the account settings they choose – are "minimal, if any."
  • Even if Facebook users set privacy settings that allow only "friends" to see the photos they post, they know their friends can independently copy and disseminate those photos.

A Florida appellate court has ordered a plaintiff to produce photographs from her "private" Facebook page in an important decision holding that Facebook users' privacy interests in the content they post – regardless of the account settings they choose – are "minimal, if any." (See Nucci v. Target Corp., 40 Fla. L. Weekly D166a (Fla. 4th DCA Jan. 7, 2015)).

Nucci v. Target Corp. involves a personal injury action asserted against Target Corporation by Maria Nucci, a customer who claims she slipped and fell at a Target store. After viewing surveillance video that called into question Nucci's claims of permanent injury, Target asked Nucci to produce more than 1,200 photographs listed on her Facebook profile. After Nucci refused, the trial court granted Target's subsequent motion to compel and ordered Nucci to produce all photos that she posted of herself on her Facebook page since the accident at issue, as well as in the two years preceding the accident.

Both at trial and on appeal, Nucci pointed out that she had maintained her Facebook page "on a privacy setting that prevented the general public from having access to her account." She therefore argued that Target's request invaded her "reasonable expectation of privacy" in the photos at issue. The appeals court, however, disagreed and affirmed the order compelling production of Nucci's Facebook photos in part because "Nucci has but a limited privacy interest, if any, in pictures posted on her social networking sites."

Friends Can Copy and Disseminate Photos Regardless of Privacy Settings

"[G]enerally, 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" for several reasons. For one, Facebook's own terms and conditions explain that Facebook 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.'"

Furthermore, even if Facebook users set privacy settings that allow only "friends" to see the photos they post, they know their friends can independently copy and disseminate those photos. The appeals court acknowledged that "In fact, the wider her circle of friends, the more likely her posts would be viewed by someone she never expected to see them." The court also stated that: "Because information that an individual shares through social networking websites 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."

Social Media Postings Provide Another Window into the Reality of a Person's Life

Nucci v. Target Corp. therefore provides key support for a litigant's right to discover personal content posted by litigants on their social media pages – even when those litigants maintain their pages under privacy settings that limit access to the general public. Beyond rejecting Nucci's privacy argument, the appeals court also described the unique value of social media posts by explaining: "There is no better portrayal of what an individual's life was like than the photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Such photographs are the equivalent of a 'day in the life' slide show ... ." In Nucci, the important issue was for Target to see the activities in which Nucci was engaged both before and after the accident to determine if she was truly permanently injured. The post-accident Facebook photos are also significant in establishing any real limitations caused by the accident.

Nucci is also a valuable case for media defendants charged with invading a Facebook user's privacy by publishing content posted on "private" pages, since the decision explains why Facebook users do not have a reasonable legal expectation of privacy over content posted on "private" pages.