The NLRB Office of General Counsel issued a second report addressing social media because it recognizes social media usage continues to be a “hot topic” on which “practitioners, human resource professional, the media, and the public” need legal guidance. The Report summarized 14 NLRB disputes involving social media. The NLRB report focused on employers’ social media policies and employees’ Facebook comments about employers. In several cases the GC concluded employee discharges based on Facebook comments to co-workers concerning working conditions were unlawful, and the Report analyzes many company policy rules at length, providing valuable insights into how to draft and enforce lawful social media policies. The full report can be accessed here.
Courts have also addressed the extent to which social media can be accessed by private litigants. In Largent v. Reed, No. 2009-1823 (Penn. Ct. of Common Pleas Nov. 8, 2011), plaintiff claimed permanent injuries and loss of consortium from a chain-reaction collision involving the defendant. Defendant filed a motion to compel plaintiff to disclose her Facebook username and password. The motion noted that plaintiff’s Facebook profile was public, not restricted, and certain posts contradicted her claims of serious injury. The Facebook materials sought by defendant included plaintiff’s family activity photographs and posts about her gym visits.
The Pennsylvania court noted that there were no appellate opinions addressing whether material contained on social networking websites is discoverable in a civil case, but it was clear that the Facebook materials met the legal threshold of relevance. The court also stated that, under Pennsylvania law, there is no confidential social networking privilege, nor any reasonable expectation of privacy, since Facebook is designed to encourage sharing with strangers and the Facebook User Policy indicates that disclosures may be made. As the Stored Communication Act is not implicated when the request for a Facebook password is made directly to the account user, the court ordered plaintiff to turn over her Facebook login information within 14 days and to not erase or delete any information in her account. Defendant was granted a 21-day period to inspect the profile, and then plaintiff would be allowed to change her password to prevent further access by defendant.
In contrast, Magistrate Judge R. Steven Whalen took a more measured approach in denying the defendant’s request for the contents of plaintiff’s Facebook account in Tompkins v. Detroit Met. Airport, No. 2:10-cv-10413-BAF-RSW (Jan. 18, 2012). Magistrate Judge Whalen noted that other decisions compelling production of a plaintiff’s Facebook account involved situations where the plaintiff’s “public profile Facebook pages contained information that was clearly inconsistent with the plaintiffs’ claims of disabling injuries,” e.g., traveling to the Daytona 500 or going on a fishing trip. In the case at issue, the plaintiff’s public Facebook pages did not contain any material inconsistent with the plaintiff’s claim of injury.
In addressing the question of whether “private” Facebook pages are privileged or subject to a right of privacy, Magistrate Judge Whalen noted that “material posted on a ‘private’ Facebook page, that is accessible to a selected group of recipients but not available to the general public, is generally not privileged, nor it is protected by common law or civil law notions of privacy.” This does not mean that an opposing party has an unfettered right of access to such information. Instead, as Magistrate Judge Whelan noted, a defendant “does not have a generalized right to rummage at will through information that Plaintiff has limited from view. Rather consistent with Rule 26(b) [of the Federal Rules of Civil Procedure] … there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”
Given the lack of evidence contained in the plaintiff’s public Facebook pages, Magistrate Judge Whalen noted that the defendant’s request for production of the plaintiff’s entire Facebook account “which may well contain voluminous personal material having nothing to do with this case is overly broad.” As such, the defendant was not entitled to obtain the plaintiff’s Facebook pages.