With social media channels such as Twitter, Instagram, and Facebook growing in popularity, the ability to post messages and photographs online can lead to unintentional sharing of information. For this reason, we warn injured clients to be careful about what they post, or what they are tagged in on Facebook and other social media sites. Over the last several years, litigation in this area has continued to evolve as defendants in personal injury claims attempt to obtain incriminating photographs from social media (specifically Facebook) of the plaintiff.
Oftentimes, clients will post photographs on Facebook that they believe are innocent enough, but may be viewed differently by a defendant in a personal injury case. A recent court decision in Florida compelled the plaintiff in a personal injury case to turn over all photographs depicting the plaintiff, who had fallen at a Target store, on their Facebook page for the last two years up to the present time. The court determined that this request was reasonably calculated to lead to the discovery of admissible evidence. Additionally, the court felt that the photographs were relevant, which outweighed any privacy interests that the plaintiff may have had. What is interesting in this case is that the posted photos were not accessible to the general public. Further, the court held that the Federal Stored Communications Act (SCA) did not apply to prevent discovery of the photographs.
In this particular case, the plaintiff had slipped and fallen on a foreign substance on the floor of a Target store. The plaintiff was alleging that she suffered personal injury, medical bills, pain and suffering, and loss of earnings, among other things. Prior to taking the plaintiff’s deposition, the defense attorney for Target actually viewed the plaintiff’s Facebook profile and saw that it contained 1,285 photographs of the plaintiff. At the deposition, the plaintiff and her attorney objected to disclosing any of her Facebook photographs. Two days after the deposition, the Target attorney saw that only 1,249 photographs were now accounted for. From this point, the Target attorney requested that the plaintiff turn over all of her Facebook photographs, which the plaintiff refused to do.
The plaintiff argued to the court that her Facebook page had been on a privacy setting that prevented the general public from accessing her account, and that she had a reasonable expectation of privacy, which Target was attempting to invade by accessing her Facebook. Target argued that the plaintiff had put her physical condition at issue, and that the relevant nature of the Facebook photographs outweighed any privacy rights that the plaintiff would have and there was no constitutional right to privacy in photographs posted on Facebook.
Target had also obtained surveillance of the plaintiff carrying heavy bags, jugs of water, and performing other physical acts inconsistent with the plaintiff’s testimony in deposition. The court made its ruling, finding that regardless of any privacy settings that the user may establish on Facebook, any photographs posted are neither privileged nor protected by any right regarding the SCA.
If you, a loved one or friend have questions regarding personal injury law, do not hesitate to contact Wieland, Hilado & DeLattre at (407) 841-7699. Consultations are free. For additional resources, keep checking our blog, LIKE us on Facebook and follow us on Twitter for helpful hints and to always be informed about best practices when it comes to personal injury.