As you may be aware, over the past five years the use of social media sites
(such as Facebook, Myspace, LinkedIn, Twitter, YouTube, Instagram, and
others) to communicate has expanded exponentially. What you may not realize,
however, is that among the users of these social media sites are attorneys
searching for relevant impeachment evidence that can be used against you
in your personal injury case, such as photographs, activities, associates,
as well as dates and times that certain events occurred. Even if the information
that is posted on the social media site is seemingly innocent, an effective
litigator can twist this information and severely damage or destroy your case.
While there is some protection of social media information provided by
the Federal Stored Communications Act (“SCA”) 18 U.S.C. §
2701, et. seq., the protection is extremely limited as the SCA only protects
private information. “Simply entering a name into Google, Facebook,
MySpace, or any other social networking website…does not constitute
a violation of anyone's privacy rights. The public information posted
on the internet is not private information. It is posted on a public medium,
and available to anyone with access to the internet.” Womack v.
Yeoman, 2011 WL 9330606 (Richmond Cir. Ct. 2011)(Trial Order).
An offense under the Stored Communications Act is committed when someone
"(1) intentionally accesses without authorization a facility through
which an electronic communication service is provided;" or "(2)
intentionally exceeds an authorization to access that facility; and thereby
obtains...[an] electronic communication while it is in electronic storage
in such system." 18 U.S.C. § 2701(a)(1)-(2). However, it does
not apply to an "electronic communication [that] is readily accessible
to the general public." 18 U.S.C. § 2511(2)(g).
When your settings are public, anyone can access your profile without
violating the SCA. Even if you have your own social media site set to
private, any information that you post that is republished by someone
with no privacy settings is also fair game. If the information is truly
private, then the SCA prohibits a social media company from disclosing
that information, even if subpoenaed.
Click here for a link that can help you make your Facebook profile private, but remember,
if your friends’ or family members’ profiles are public, they
can be searched for information about you and your activities.
Even if all of your social media information is “private,”
if you are involved in a lawsuit, the other side can force you to produce
all of your social media information through the discovery process by
use of interrogatories (written questions), by requests for production
of documents, or by subpoena. This is done through Virginia Supreme Court
Rule 4:9 for parties and Rule 4:9A for non-parties. Pursuant to Virginia
Supreme Court Rule 4:1(b)(1), the information requested need only be relevant
and lead to the discovery of admissible evidence, which is an extremely
broad standard. While not everything that you post on a social media site
will be relevant to your personal injury case, if you do not want the
other side to have access to this information, do not post it.
You cannot hide it from the other side. If you are already involved in
a personal injury action or have been injured through the fault of someone
else, and have posted something on a social media site, do not destroy
it or remove the post. This may be deemed destruction of evidence and
can lead to a spoliation instruction if your case goes to court, which
essentially allows the jury to infer that whatever you destroyed shows
what the other side wants it to – which is generally going to be
something that they will try to use against you. So remember, if you are
injured through the fault of someone else, contact an experienced personal
injury attorney familiar with both state and Federal laws, and remember,
be careful what you post on social media.