Facebook and Right to Privacy


Most of us use Facebook or other forms of social networking.  We put up cute pictures of ourselves, our pets and our family members.  Most of us even go through the trouble of marking some of our postings private in the hopes that they don’t fall into the wrong hands.  However, does private really mean private?

According to a decision by the New York Appeals court on October 27, 2011, Paterson v. Turner Construction, an employer does not have the right to see all that is on an employee’s Facebook account, but not because it’s private, because the demand by counsel was not specific enough when making demands for production in order to build the case.

The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access (Romano v Steelcase Inc., 30 Misc.3d 426, 433-434 [2010]), just as relevant matter from a personal diary is discoverable (see Faragiano v Town of Concord, 294 A.D.2d 893, 894 [2002]).

It appears that when you sign up for Facebook you sign an agreement that states that although you may mark your documents private the chance of them coming into the public domain is not unforsseable.

In a 1967 case of Katz v. United States of America the court opined that fourth Amendment’s right to privacy “protects people not places.”  Keep in mind that the internet is a place and as such it is not protected by the Fourt Amendment’s Right to Privacy according to the Katz court.

As paralegals we all know what it’s like to draft a demand for discovery.  Sometimes you just know that if you can get your hands on such and such document you will be able to find what you need.  You go ahead and request everything under the sun.  Well, here it appears that the court is saying that, although you may have the right to the discovery you are requesting, make sure you are not going on a fishing expedition.  Make sure you know what you’re looking for and that you have a reason to request what you’re requesting.  Fishing expeditions are burdensome to everyone and no one wants to waste time going through documents that will lead to absolutely nothing.

So, for us paralegals there are two things to take away from this decision:  One in my opinion is more a professional matter and the other is more of a personal matter;

  1. Make sure that when you are drafting your demand for production of documents you know why you’re asking and that what you’re asking for will provide you with the information you are seeking.  Formulate your requests in a manner that will make allow your adversary to provide you with the documents you need without wasting yours and your adversary’s time; and on a personal note;
  2. Remember that just because you post something on the internet and marke it private – Privacy is really not privacy.  Once in the public domain (internet) it becomes public whether or not you set up your privacy settings.

Just as a reminder, I am not an attorney.  The above are just my opinions and my review of the court’s decision.  Nothing in this article or any of the articles by The Paralegal (me) should be construed as legal advice.

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