Can your Facebook photos be used against you in a lawsuit?

MARIA Nucci slipped and fell at a Target store in Palm Beach, Florida. She sued Target for personal injury, claiming, among other things, that she has become physically handicapped experiencing emotional pain and suffering, that she lost the ability to earn money, and that she will continue to suffer losses and impairment in the future.
In order to gather information about her claims, Target took Nucci’s deposition (which is a sworn out-of-court testimony). Before the deposition, Target’s lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, Nucci objected to disclosing her Facebook photographs. Target’s lawyer examined Nucci’s Facebook profile two days after the deposition and saw that 36 photographs had disappeared from her Facebook page. Target moved to compel inspection of Nucci’s Facebook profile, arguing that it was entitled to view the profile to examine the quality of her life before and after the accident and to determine the extent of her loss.
Nucci responded that since its creation, her Facebook page had been on a privacy setting that prevented the general public from accessing her account. She claimed that she had a reasonable expectation of privacy regarding her Facebook information and that Target’s access would invade that privacy right.
At the hearing, Target showed the court photographs from a surveillance video in which Nucci could be seen carrying heavy bags, jugs of water, and doing other physical acts, suggesting that her claim of serious personal injury may be exaggerated or false. Target argued that because Nucci is making claims regarding her physical condition, the relevance of the Facebook photographs outweighed her right to privacy. Target also argued that there was no constitutional right to privacy in photographs posted on Facebook.
The battle reached the appellate court which acknowledged that the right to privacy in the state’s Constitution ensures that individuals are able to determine for themselves when, how and to what extent information about them is communicated to others. However, before one can invoke the right to privacy, there must exist a legitimate expectation of privacy. One of the major issues in the case is whether Nucci had a legitimate expectation of privacy when she posted photos of herself on Facebook.
The appellate court noted that social networking sites, such as Facebook, are free websites where an individual creates a “profile” which functions as a personal web page and may include a vast array of personal information about the user. Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others – which is the very nature and purpose of these social networking sites. Thus, the expectation that such information is private, in the traditional sense of the word, is not reasonable.
The court further noted that even if Nucci used privacy settings that allowed only her “friends” on Facebook to see postings, she had no justifiable expectation that her ‘friends’ would keep her profile private. In fact, the wider her circle of “friends,’ the more likely her posts would be viewed by someone she never expected to see them. Thus, material posted on a ‘private’ Facebook page that is accessible to a selected group of recipients, but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.
The court concluded that, generally, 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.
The court characterized the photographs as powerfully relevant to Nucci’s claims for damages.  The relevance of the photos far overwhelmed Nucci’s minimal expectation of privacy on social networking sites. Thus, Nucci will have to turn over the Facebook photos of herself to Target. If these photos indeed indicate that Nucci’s personal injury claims were exaggerated or false, her case just made a turn for the worse.
Nucci is a case in Florida. However, her cautionary tale may be true anywhere in the country. In this digital age, where information is literally at the tip of the fingers of anyone with an internet connection, your social media posts online may be used against you.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost.  Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit  www.joesayaslaw.com. 

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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.