Social media has become a part of everyday life for most Americans. According to the Pew Research Center, as of January 2014, roughly 74% of all online adults utilize some form of social networking sites. The age range with the highest percentage of social media users is 18-29 year-olds, with 89% of these online users logging into these sites. Approximately 82% of adults ages 30-49 use social media, and 65% of those ages 50-64 use them. Even among online senior citizens aged 65 and older, use of social media is very common, at 49%.
With all this online social activity, in the past several years the question has arisen in various legal contexts as to whether and to what extent an individual’s social media activity can be presented in a court case as evidence. Many online users are under the mistaken impression that implementing privacy settings provides legal protection against public use of their posts, photographs, etc. in a court of law. This is simply not true.
No Expectation of Privacy in Online Social Media
In a recent court case heard in Florida’s Fourth District Court of Appeals, Nucci v. Target Corp., the judge permitted a defendant to make a discovery request of photographs from the plaintiff’s social media accounts. According to the court, such accounts provided a “treasure trove” of information. Agreeing with several other court cases on this issue, the judge found that the plaintiff had no reasonable expectation of privacy in items posted on social media, regardless of the plaintiff’s use of privacy settings, because participation in a social network acknowledges the fact that personal information is being shared with others. Furthermore, even with privacy settings in place, the plaintiff could not be sure that her friends would keep the posts private.
“Narrowly Tailored” Discovery Requests are Permissible
Nevertheless, a party’s right to the content of an opposing party’s social media postings is not absolute. Different courts have weighed in on the issue of what limitations can be placed on such discovery requests. In Nucci, the court allowed requests for photographs associated with the plaintiff’s accounts for the two years prior to the date of the alleged loss up to the present because the request was “narrowly tailored” both in time and in content. The two year cutoff would provide information that was relevant to the claim being asserted. The defendant did not ask for usernames or passwords, which were not relevant to the case and which would have been considered overbroad. In addition, the request was only for photographs, and not for messages between the plaintiff and third parties.
Divorce and Family Law Implications of Social Media
In the family law context, any social media postings that are relevant to a case are therefore fair game for a “narrowly tailored” discovery request by an opposing party. This is a sobering thought, and one that most users of social media give little consideration to. While Florida is a no-fault divorce state, social media content may still prove relevant in cases involving issues of child custody, child support, spousal support, and marital property settlement. While it is impossible to take back a word once it is spoken, anyone who foresees the possibility in the near future that he or she may be involved in a legal battle is well-advised to be very circumspect about online public communications.
This growing body of case law provides just one example of the many types of thorny issues that an individual possibly faces once he or she becomes entangled in a legal dispute. If you are in need of legal advice concerning any divorce or family law matter, James S. Cunha is a highly skilled and experienced Palm Beach Family Law Attorney who has been serving the needs of clients in South Florida for many years. Call the Law Offices of James S. Cunha, P.A. today at 561-429-3924, or toll-free at 1-800-558-1227 to schedule your consultation.
