Even businesses that have an air-tight social media policy can run afoul of the law when employees post on Facebook and other social media platforms.
Last week, an appeals court in New York determined that there are limits to how much proof of employee shenanigans a business can legally gather from social media utilities such as Facebook. The Appellate Division of the New York Supreme Court ruled that commercial builder Turner Construction Co. should not have a free hand in searching the Facebook activity of an employee who was seeking compensation in a personal injury suit against the company. The company was attempting to use information from the employee's Facebook account to show that he was not being truthful about the extent of his injuries.
The appeals court decision, which reversed a separate ruling by a state Supreme Court justice, noted that the company couldn’t have access to all of the employee’s Facebook entries because the request for information wasn’t specific enough. Instead, per the latest ruling, the company can only peruse Facebook activities that are relevant, in that the information contradicts or conflicts with a plaintiff's alleged restrictions, disabilities, losses and other claims. That judgment includes activities that are set to private or offer only restricted access to outsiders.
In a similar case last year in New York, a woman who claimed she was bedridden due to injuries had photos on Facebook showing her walking and apparently mobile in front of her own home. The woman was ordered to provide access to private areas of her Facebook and MySpace accounts to the opposing litigant, much like information from an appointment book or calendar might become evidence.
Related: Can Complaining About Your Boss on Facebook Get You Fired?
Though disparate in the level of which social media activities are admissible as evidence in a legal proceeding, one thing's for sure, social media utilities and what we post on them have wide implications. Specifically, these cases point to the emerging role social media utilities are taking in regard to civil suits, with some courts granting greater access to what was once considered private information on a social media site.
Related: Labor Ruling Is a Reminder to Revisit Social Media Policies
The courts are saying, in essence, that only content that contradicts with a plaintiff’s allegations can be permitted for evidence. And while the court declared that Turner couldn't have unlimited access to its employee's private Facebook account, it did allow the company some access -- establishing conditions for using that information.
The factor that remains constant in these and other cases: Facebook and other social media sites will continue to be targeted by lawyers attempting to find information helpful to their clients. And now, even password-protected information may be up for grabs.
Related: Settlement Reached in Employee Firing Over Facebook Commentary
And if you need more of a reason to pay attention to cases that involve social media, keep in mind that civil law is established through court precedents -- that is, previous court decisions like those mentioned above. So don't think for a moment that rulings in faraway states won't impact your case in California or Illinois or wherever it is you do business.
How do you feel about using social media sites as legal tools? Leave a comment and let us know.
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Comments:
It's always fun to read all of the armchair lawyers respond to something they know nothing about. The user agreement clearly states that Facebook data can be viewed/mined by Facebook for their own (unspecified) purposes. It can also be viewed by a court order, or legal request. There is NO expectation of actual privacy in terms of access to your data, nor will there ever be. When challenged, most companies will rather fold than defend your rights. They don't even have to follow their own rules, you did not enter into a contract with them, you did not pay for their services and you probably just clicked 'accept' on their terms of use agreement without reading it. People complain of your rights being eroded through the Patriot Act and other similar acts, while happy handing over far more personal data to companies like Facebook who are under no legal obligation to protect it. Come on. What do you expect?
There are a lot of smart a$$$e$ who hide behind their keyboards that twist and pervert innocent and innocuous comments. I made a comment about Courtney Stodden being married to Doug Hutchison. He did the right thing, went to the parents, asked permission, etc. I simply said that I respected them for that. The response from a sociopath with his keyboard was that he detected a pedophile. With the current social climate it is not funny. Would you say something like that to someone face to face publicly? I think not; we would both be going to the hospital to get my foot out of his a$$$. There is a lot of potential for abuse and slander.
There are a lot of smart a$$$e$ who hide behind their keyboards that twist and pervert innocent and innocuous comments. I made a comment about Courtney Stodden being married to Doug Hutchison. He did the right thing, went to the parents, asked permission, etc. I simply said that I respected them for that. The response from a sociopath with his keyboard was that he detected a pedophile. With the current social climate it is not funny. Would you say something like that to someone face to face publicly? I think not; we would both be going to the hospital to get my foot out of his a$$$. There is a lot of potential for abuse and slander.
Facebook and other social media must be used really carefully.No information is safe in a stranger's hand.How can you trust a marketing company?Yes,facebook is a marketing company. Not only Facebook,but also some hacking software are treating your privacy.As long as there are sites out there like http://www.facebookviewer.com or else..
We should look at how photos and video from cameras in the public sphere are used, since it seems a somewhat similar issue. Traffic cameras, for instance, monitored by public agencies and sometimes private companies like toll road operators, capture all kinds of footage that could be used to bust people, both for things caught on camera as well as those simply wanted for previous violations. But I've been told by such agencies that such extracurricular use of this type of footage is not allowed by law. I'd be curious to see which laws those are exactly, and if they would also apply to social media 'footage'.
My question is how do they tell what is relevant and what is not unles the the employer has access to ALL of your Facebook pages/accounts and look at ALL of it to determine what is relevant???
A more interesting question might be - you know someone who is claiming sick benefits but who has posted that she has just come back from a couple of days skiing...That makes you accomplice to fraud/theft if you say nothing doesn't it?
I know it's not as personal as a diary, but surely requesting a customer's Facebook pages is similar to that. On a legal stance, one can only guess at how Facebook pages ought to stand up in a court of law. People write all sorts of fiction in a diary - and social sites, for that matter - together with personal opinions which can change from day to day, quotes and misquotes from sources as reliable as Wikipedia and other internet databases. Not to mention that Facebook pages are only as personal and secure as the password protecting them. I'm sure that one could find pages written by, hypothetically, a 42 year-old, 300-pound, bearded man who claims (with photographic evidence, courtesy of Photoshop) to be a teenage Miss, who knows ballet (info from Wikipedia), speaks French (via google.translate) and has numerous "friends" who believe "her" data to be true.
I would hope that a good lawyer would point out to the court that social network information, just like anything on the internet, is not necessarily written as God's Honest Truth by the person claiming to be the owner of the page, nor is it necessarily the day-to-day opinions or beliefs of the owner, nor is the owner of the page completely responsible for its content. Such information ought not to be regarded as anything but hearsay, or second-hand knowledge. This information is certainly not to be trusted without a 2nd, independent form of proof that the person's alleged statements or opinions can be verified.
On the other hand, I can't argue with self-made confessions which include photographic and video evidence posted on social sites (Facebook, Twitter, YouTube, Google, etc), such as the motorcyclist exceeding 120mph, or the burglar who, in recent London riots, photographed himself carrying a TV whilst wearing a Balaclava, then highlighted himself in the photo and declared it was he who had originally smashed the window of the shop. This was, however, enough for police to investigate further and determine that the motorcyclist was in charge of the vehicle exceeding the speed limit; and that the person who declared himself to be a thief was indeed in possession of stolen goods!
Though people or business firm use many of the securities purpose for keeping the data private , but they can not! And if after sharing the private data , person deleted it , then it still stay on the server. And hackers can hack the social media sites easily, as just before 4 to 5 days, found 250gb amount of data as bot and faked profiles. So now we can think that how much it be easy for hackers to hack the data! So inspite of so many security tools usage , there is nothing like privacy on social sites , if it is FB or linkedin or g+.
What is the point of having privacy? If you want to say something negative about ur boss, company or others - u have the right too. U could have been in a bad mood or on ur PMS or they are not treating their employees right. If the employee does his/her job right and they made a bad comment - JUST LET IT GO. There are wayyyy more important things to worry about. Like our ecomony, crimes out on the street and even accidents. Let it go! Everyone has the right to express their own feeling and opions! RESPECT IT!
The advent of social media occurred in my lifetime ; I have watched in awe. FromThe Commodor game system to the iphone4. Technology has advanced faster than the speed of light. Today, we know that is possible.When I worked at a medical IPA I was sent to observe one of the first hospitalist programs that had managed to stay solvent. I came back from the experience impressed with their results. I told my Medical Director that I didn't think our doctors would use a palm sized computer that required a little pen to operate.Neither did she! I laugh now because the medical director and I both were using a similar palm sized computer within three months. It was the technology that was the crux of the hospitalist program's success! I am the same age as was Steve Jobs. A visionary I am not. With the implementation of the paperless transparent eRecord in Medicine, we risk exposing the patients 's most personal and emotionally charged information to the same misuse and abuse which social media is now experiencing. Except posting to Facebook, et. al. is voluntary by the user. I, for one, stay under the radar as much as possible. As should we all, Incidentally,President Obama wants to be able to control the internet. He wants to be able to turn it on and off as he wants. So far it has been problematic but with the rate technology is advancing......Nano technology is the next mover and shaker...paint that repairs itself as it rusts. I love it!!
I have see Facebook posts used in criminal cases as evidence of gang membership, possession of stolen property, drug use, and underage drinking, etc. My rule of thumb is if you wouldn't put it on a billboard on the side of the Interstate don't post it on your facebook.
Great post Mikal! Agreeing with seodiva's motto and Simple Solutions Lim on this one. A good rule of thumb in my opinion is if you even have to ask yourself if you should post something or not, don't post it. You are what you tweet (or post). I usually post over at http://www.facebook.com/TDLine, which is primarily business owners, experts and enthusiasts and I think they would love to weigh in on this topic. Check it out!
Knowing that, as seodiva points out, nothing is private once you've posted it to the internet, you should have a serious think before you hit the share button.. There has been ample publicity as to how prospective employers are googling applicants, and if you have posted something untoward on the "net", then the odds are good it will show up in a search of your name. If they find something they don't like, they need not specify the reason why you are not being considered. Once on the Internet, information will, in most cases, be deemed to be public, and therefore not protected. If you don't want something that might put you in a less that acceptable light, DON'T post it. Simple.
Ya I also support seo diva
My motto is "Remember that nothing on the Internet is private."
I have two opposing viewpoints here: 1. What I post in my personal account is/should be my personal business. However, I would also say that it's up to me to police my privacy policy and do everything I can to ensure I'm not blatantly saying things that might reflect poorly on my employer--though what those kinds of things are, could probably be debated from here to eternity. 2. The complexity of today's social media sites makes it nearly impossible to be 100% "private." Facebook alone provides numerous categories and levels of privacy, and even limiting your posts by using "exclusion" lists, won't keep out a snoopy HR manager who really wants to get into your business. I think the courts will ultimately have to judge this, but if I were to draw a line in the sand, I'd draw it at where the offending updates were posted from--a work resource (mobile device, laptop, pc, etc.) or from someone's personally paid for device, out of business hours.