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What You Post On Social Media Can And Will Be Used Against You In A Court of Law

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.  Below is 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.

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