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Social Media is Just That – Social

From venting on Facebook to taking “selfies” of where we are and who we’re with on Instagram, social media platforms have become a gold mine of information about peoples’ likes and dislikes, the activities they perform on a daily basis, who they are or are not friends with, and so much more. As venues like Facebook, Pinterest, Twitter, Google+, and LinkedIn rapidly become the dominant communication platforms of the future, they are also morphing personal privacy into a vastly more limited space.

Social Media and Personal Injury Cases

Due to the extensive amount and diversity of information shared on these platforms, social media evidence has assumed a prominent role during discovery in a variety of litigation contexts. Some personal injury lawyers are discovering injurious information concerning a plaintiff’s exaggeration of alleged injuries by reviewing the plaintiff’s online presence. In 2012, the Florida Rules of Civil Procedure were amended, confirming that social media evidence is discoverable; however, the Florida Evidence Code has remained silent regarding the admissibility of this potential evidence. Whether this evidence is admissible and under what circumstances has been a question left for the courts to answer; however, Florida Trial Courts’ opinions have varied significantly regarding these issues. A recent appellate court decision has finally cleared some things up.

In Nucci v. Target Corp, et al, a Florida state appellate court ruled that social media photographs are not protected from civil discovery. In this slip-and-fall lawsuit, the defendant served discovery demands seeking to inspect the plaintiff’s Facebook page to call into question the true extent of the injuries plaintiff claimed. The plaintiff objected to providing the photographs; however, the trial court overruled the objections and ordered the production of all the photos posted not only on plaintiff’s social media accounts but also on her cell phone. The plaintiff then appealed and filed the Writ to the Fourth District Court of Appeals claiming that the privacy settings on her Facebook account gave her a reasonable expectation of privacy and therefore, the trial court’s order to compel the photos unconstitutionally invaded her right to privacy and violated the Federal Stored Communications Act, 18 U.S.C. §§ 2701-2712.

The appellate court upheld the lower court’s order holding that individuals have little or no privacy rights to information that they have posted on social media, regardless of the their privacy settings. The court explained, “before the right to privacy attaches, there must exist a legitimate expectation of privacy … Facebook itself does not guarantee privacy.” The court sided with the defendants, holding that the expectation that information shared on social media is private is not a reasonable one – “By creating a Facebook account, a user acknowledges that her personal information would be shared with others.” Finding that the photos were reasonably calculated to lead to the discovery of admissible evidence, the court reasoned, “If a photograph is worth a thousand words, there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury.” The court also rejected plaintiff’s argument regarding the Federal Stored Communications Act, claiming “[t[he act does not apply to individuals who use the communications services provided” and “does not preclude civil discovery of a party’s electronically stored communications which remain within the party’s control even if they are maintained by a non-party service provider.” The court did preface it’s opinion by warning that litigants are not entitled to fishing expeditions of irrelevant materials; however, the court noted that personal injury cases “where the plaintiff is seeking intangible damages” social media evidence can be “powerfully relevant”, like in this case.

Because of this opinion, “…the courts in Florida now have a definitive rule to follow with regard to what is discoverable in terms of the newly emerging issue of social media in the context of personal injury cases.” Not only does this opinion provide a cautionary reminder of the relevance and potentially harmful consequences of social media postings, for personal injury claims, this holding fashions social media platforms as valuable tools ensuring the access of relevant information concerning a plaintiff’s physical injuries and quality of life.

Can We Help You Recover Compensation?

Of course, those injured by the negligence of another should still pursue adequate compensation, even if they have an active presence on social media. Let the skilled Fort Lauderdale attorneys at Boone & Davis ensure that you are awarded damages in your personal injury case.

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