Court Holds Employee Facebook And MySpace Postings Are Not Private And Must Be Disclosed In Litigation

November 15, 2010

By: Jessica C. Moller

The courts have begun to address the question of whether an employee’s social network profile and postings, including sections only accessible to “friends,” are “private.” Most recently, the New York State Supreme Court for Suffolk County decided that the non-public portions of a plaintiff’s social networking sites are discoverable in litigation when they may contain information relevant to the plaintiff’s claims for damages for loss of enjoyment of life, Romano v. Steelcase Inc.

Ms. Romano sued her employer for, among other things, injuries she sustained that she alleged rendered her permanently disabled. According to the Court’s opinion, the publicly accessible parts of Ms. Romano’s Facebook and MySpace pages contained information which her employer “believed to be inconsistent with her claims” of permanent disability, “especially her claims for loss of enjoyment of life.” For example, publicly accessible photographs showed that Ms. Romano had an “active lifestyle” and traveled from New York to Florida and Pennsylvania during the time she was allegedly home and bed bound due to her injuries. The defendant employer made a discovery demand for access to all of her “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”—both the publicly accessible parts of such pages and those parts which Ms. Romano had marked as “private” and made accessible to only her social networking “friends.”

In determining that the defendant employer was entitled to the information, the Court concluded that Ms. Romano had no reasonable expectation of privacy in the material. The Court reasoned that because the whole purpose of social networking sites is to share information with others, by creating her Facebook and MySpace pages and posting information and photographs on them, “she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.” The Court also concluded that any minimal privacy interest was outweighed by New York’s “strong public policy in favor of open disclosure” in litigation. Because the federal Stored Communications Act prohibits a social networking site like Facebook or MySpace from disclosing the information sought without the consent of the owner of the account, the Court ordered Ms. Romano to provide the necessary consent.

The Romano decision was issued in the context of a litigation discovery dispute between an employer and employee, but the case’s impact is potentially broader because of the general principle it enunciates: individuals do not have a reasonable expectation of privacy in Facebook postings, regardless of the privacy settings they choose. As a result, when a co-worker who is “friends” with an employee presents an employer with photographs that the employee posted on Facebook, and those photos clearly demonstrate the employee was on vacation when he had called in sick, the employer may consider that material in its investigation. The employer may do so even if the employee’s privacy settings would have prevented the employer from accessing the photos directly. Of course, when obtaining investigative material from a co-worker, the employer/investigator must still proceed with caution given Stored Communications Act concerns