Your Social Media posts may be used against you.

A recent collection of new cases makes clear that Court’s are becoming more and more inclined and willing to allow discovery of and admission of evidence of a parties’ social media posts, pictures and content. When you post on-line, are you considering the fact that the posts may be shown later to a Court or Jury??

In a sexual harassment case, [E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., 2012 WL 5430974 (D. Colo. Nov. 7, 2012)] the defendant moved the court to compel production of information contained on the social media accounts of many female class members. To show that the information sought was likely to be relevant, the defendants pointed to several publicly-available Facebook posts. For example, one plaintiff’s Facebook posts contained information about her emotional state, her financial expectations in this lawsuit, her post-termination employment, and her outlook on life post-termination. Viewing each of these categories as “potentially relevant” to the case, the court stated that “if the information was contained on pages filed in the ‘Everything About Me’ folder, it would need to be produced.” Addressing whether the result should be different because the information is on Facebook, the court reasoned that willingly choosing to store and share information on Facebook presents “an even stronger case for production, at least as it concerns any privacy objection.”

In another case a court Found that Facebook pictures of plaintiff skiing were relevant to her claim of damages and allowed further discovery. In Richards v. Hertz Corp., 2012 WL 5503841 (N.Y. App. Div. 2d Dept. Nov. 14, 2012), a personal injury suit arising out of an automobile accident, the defendant sought all “status reports, e-mails, photographs, and videos” posted on the private portions of the plaintiff’s Facebook page. The defendants alleged that production was warranted because one of the plaintiffs posted to Facebook pictures of herself skiing, which were directly relevant to the plaintiff’s testimony that the accident impaired her ability to play sports and “caused her to suffer pain that was exacerbated in cold weather.” The court found that the defendants met their burden, showing that the public images and other portions of the plaintiff’s Facebook profile were “reasonably calculated to lead to the discovery of information bearing on” the plaintiff’s claim.

And in Pennsylvania an Employer was found not to have violated certain Federal law when it took control of a former employee’s LinkedIn account under company policy. In Eagle v. Moran et al., Civil Action No. 11-4303 (E.D.Pa. Oct. 4, 2012), the plaintiff attempted to establish violations of the Federal Computer Fraud and Abuse Act (“CFAA”) and the Federal Lanham Act against her employer because after the plaintiff was involuntarily terminated from her position as CEO with her former employer, the employer used her password to change her LinkedIn profile to that of the new CEO as well as the password associated with the account. When individuals searched for the plaintiff, it resulted in the display of the incoming CEO’s name, photograph, and new position. It is important to note that the employer followed internal policies of asserting ownership over former employees’ accounts, and, while the employer did use information and incoming traffic from former employee accounts, it took steps to avoid identity theft. Additionally, when the plaintiff set up her LinkedIn account, she gave another employee her password according to internal policies. Under the CFAA, the court ruled that the plaintiff failed to establish a claim as a matter of law because loss of business opportunities is not enough to meet the required showing of actual loss (usually proven by showing damage to a computer). Under the Lanham Act, the plaintiff is required to show that the defendant created a “likelihood of confusion” from using a “mark” owned by the plaintiff. The court disposed of the claim on the “likelihood of confusion” prong because any confusion that occurred was not about the plaintiff’s “’affiliation, connection or association”’ with the new CEO or employer—at most it created a mere diversion. The Federal Law claims were dismissed, though the court did not rule on several state causes of action set for trial.

Employers and employee need to carefully consider their use and relationship to both social media content and social media accounts. Have a policy and clear understanding about both and get the advice of your legal counsel to help navigate this rapidly developing area of law.

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Public Disclosure of Private Facts:

Public Disclosure of Private Facts: California Court of Appeal Holds that Spoken Words Can Support a Privacy Based Tort Claim.

An employee’s right to protect his or her personal information has become strengthened by a recent California Appeal Court case. In Ingat v. Yum! Brands, Inc., the California Court of Appeal (March 18th, 2013, Case No. G046343) has held that the privacy-based tort of public disclosure of private facts does not have to be predicated on the disclosure being in written form; an oral disclosure is sufficient to support the claim.

In the case, an employee alleged damage based on her employer’s verbal disclosure of a bi-polar disorder. The case was dismissed because the disclosure was not in writing. The dismissal was overturned.

The Court noted that the requirement that disclosures must be written to support the claim of Public Disclosure of Private Facts stems back to the 1931 case of Melvin v. Reid, and then observed that “the concentration on written publications in cases cited in Melvin appears to be simply an accident of the kinds of privacy violations prevalent at the time,” and not based on any fundamental policy that required the disclosure must be in writing. With the advent of subsequent new technologies such as television, radio, visual broadcasts via the internet, etc., disclosures can easily take not written form and the California Court of Appeal felt that any notion that the disclosure had to be written to support a claim no longer applies.

The Court stated: “[w]e conclude that limiting liability for public disclosure of private facts to those recorded in writing is contrary to the tort’s purpose, which has been since its inception to allow a person to control the kind of information about himself available to the public-in essence, to define his public persona.”

Clients who are employers now need to be specially aware that in the course of their ongoing diligence insuring the privacy of employee information, a risk of verbal disclosure must not be considered and managed.

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