Beware: Your Facebook Posts Could End Up in Court

By: In: Information Management On: Dec 16, 2010

Social networking posters beware…your Facebook and other social media accounts may be seen by more than just your friends; in fact, what you post and tweet could become court evidence.

But many of us don’t consider these implications when tweeting and posting. Current employers, potential employers and, yes, even attorneys review social networking sites for information on workers, job candidates and litigants.

Individuals as well as organizations need to carefully consider what they post to these sites. In the personal injury case of McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts, requesting an eDiscovery production of his usernames, log-ins and passwords.

Plaintiff objected, arguing that the information on those sites was confidential.  Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days. Additionally, the court ordered that plaintiff should not take steps to delete or alter the existing information on his social network accounts. The court said:

Specifically addressing the expectation of privacy with regard to Facebook and MySpace, the court found that any such expectation “would be unrealistic.”  The court then analyzed the relevant policies of the two sites, and concluded as to both that, “[w]hen a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate.”  Accordingly, the court determined that defendant could not successfully assert that his accounts were confidential.  In so holding, the court also noted the possibility that communications could be disclosed by friends of the account holder with whom the communications were shared.

Organizations need to establish and enforce employee social media policies to lower their risk and better protect their brand. Check out this related blog titled “Companies Need a Social Media Policy” for suggestions on establishing a corporate social media policy. And for all of us posters, bloggers and tweeters, be careful what you say; otherwise, it could be read back to you by an employer or judge.

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About the author

Bill Tolson

Bill is currently a director of product marketing and evangelism at Iron Mountain. Bill has more than 20 years experience in product marketing and consulting in both storage and archiving solutions markets. Previously, Bill was a principal consultant and practice manager for Contoural Inc. where he led the eDiscovery and compliance consulting business specializing in storage solutions, email archiving, enterprise content management and information lifecycle management. Bill has been a featured speaker at many archiving events including the Government Technology Conferences, AIIM 2009, ARMA, ARMA Canada, LegalTech West and TechTarget’s Email Archiving Series. Bill is the author of two eBooks “the Know IT All’s Guide to eDiscovery” and “The Bartenders Guide to eDiscovery” as well as the book “Email Archiving for Dummies.” Bill has held senior management positions at Hewlett-Packard, Hitachi Data Systems, StorageTek and Iomega.