Does an individual have a “right to privacy” to information on his non-public social media page? The common belief amongst users is that a user has a “right to privacy” to information on his social media pages where privacy settings have been set to restrict access. However, a recent series of court decisions in Canada, the Southern District of Illinois, New York, Colorado and Pennsylvania have determined that not only is there no social networking privilege, but that there is no reasonable expectation of privacy to material posted on social media sites, regardless of privacy settings.
The issue before the courts has been primarily whether a party is permitted access, by court order, to the non-public portions of an opposing party’s social media pages in order to access information refuting the opposing party’s claims. These requests are most often seen in cases where an individual is seeking damages for loss of enjoyment of life and/or permanent injury, or in the family law context. The requesting parties generally claim that either: (i) based upon relevant information observed on the publicly available portions of the individual’s social media page; or (ii) based upon the fact a person actively maintains a private social media page with the public profile providing no relevant information, the requesting party has a good faith belief that relevant information exists in the non-public portion of the social media.
In addressing the issue, various courts have investigated the purpose of social media sites, the dissemination of a plaintiff’s information on those sites, the Fourth Amendment and any relevant laws governing privacy of information in the electronic age in the jurisdiction. In one such case, a Canadian court determined that the purpose of social media sites was to enable people to share information about their personal lives; therefore, depriving an opposing party of this potentially relevant information risks the assurance of a fair trial. Furthermore, the court stated that an opposing party cannot “have a serious expectation of privacy” given that this information was shared with numerous other sources on the social media site, nor can that party “hide behind self-set privacy controls.” Similarly, in New York, a court determined that upon joining social media sites, users are informed that their information may be disseminated to third parties a variety of different ways, and, therefore, cannot have a reasonable expectation of privacy about personal information published on those sites.
The New York court also held that the Fourth Amendment’s right to privacy does not protect “places” therefore, information that an individual knowingly exposes to the public is not subject to the protections of the Fourth Amendment. This line of reasoning was continued by a Pennsylvania court, which held that the Stored Communications Act, designed to protect digital and electronic information under the Fourth Amendment, does not protect an individual’s privacy of stored Internet communications, but rather applies only to the enumerated entities.
Where the courts appear to differ on this issue is the duration and scope of discovery once access of an individual’s social media page has been permitted. Some courts have conducted an in camera inspection of the individual’s non-public social media site, where other courts refuse to do so. Some courts have permitted a limited period of time for access, whereas other courts have just ordered a plaintiff to turn over the login requirements without a timeframe.
Ultimately, the courts that have addressed this issue have almost categorically determined the following:
- information sought from an individual’s non-public social media page is discoverable if it is determined relevant, material and necessary for the opposing party’s defense;
- an individual does not have a reasonable expectation of privacy of information published on social media page, regardless of privacy settings; and
- if the information sought is relevant, material and necessary, the opposing party’s need for access to the individual’s non-public information on social media pages outweighs any privacy concerns of the individual.
Some courts have acknowledged that their holdings in these cases must be narrowly construed, and not permit “fishing expeditions” or a requesting party’s entitlement to private social media information. Rather, the requesting party must show a good faith belief that relevant information exists in the non-public portion of the opposing party’s social media page, either by a review of the public portions of the page, or sometimes with just the existence of a private page, depending on the court.
The message emerging from these cases is that privacy settings are no defense to shield information from a reasonable request for relevant discovery contained in non-public social media pages. A requesting party may seek, and obtain, full access to an opposing party’s social media site upon showing a reasonable belief that the social media site contains information relevant to the opposing party’s claims – regardless if the information is admissible at trial or not. Therefore, it is imperative that both clients and their counsel are aware of all content and potential liabilities concerning use of social networking sites, and refrain from publishing sensitive, non-public or privileged information, particularly when litigation is pending.