Can Facebook Postings Affect a Personal Injury Lawsuit?

by stefanies on October 24, 2012

Many people believe that what’s on their Facebook page is private, and they can be a little careless about things they post to Facebook. A prime example is a group of Pittsburgh, PA burglars who posted pictures of themselves posing with $8000 in cash that they stole from a grocery store.  A family member saw the pictures and turned them into the police.

What about if you’re involved in a lawsuit?  Can something you posted on Facebook be used against you?

Technically, the answer is “it depends.”  State laws vary as to the discovery procedures that lawyers can use in a lawsuit. Furthermore, some people think the Fourth Amendment to the US Constitution provides a “right to privacy,” but it doesn’t really.  The Fourth Amendment provides for protection against unreasonable searches and seizures, which isn’t exactly the same thing.

There is a Supreme Court case, Katz v. United States, from 1967 which says that information may be considered private if there is a “reasonable expectation of privacy.”  Is there a reasonable expectation of privacy for things posted on Facebook?

One could argue if you use restrictive Facebook settings – not allowing anyone other than friends to see your posts – you are indicating that you expect some privacy for your posts.  On the other hand, the Facebook user agreement states that any content that would be governed by Intellectual Property Rights – such as videos and pictures – are the property of Facebook for the time they are posted and some time afterwards.  This could very easily be construed as meaning there is no expectation of privacy at all for your Facebook pictures.

How can this affect a personal injury lawsuit?  Let’s say you are in a lawsuit claiming that you have a serious back injury that prevents you from being able to work.  Post a Facebook status with a picture showing you dancing at nightclub and you’ve just destroyed your personal injury case.

Lawyers cannot tell you to “clean up your Facebook page” during a lawsuit.  One Virginia lawyer, Matthew Murray, was sanctioned to the tune of $542,000 for telling a client to do that.

Lawyers can, however, tell you to be very careful about what you post to Facebook.  The safest assumption is “don’t post it to Facebook if you would not want to see it in the newspaper.”

About the Author

Nussin S. Fogel, Esq., has been practicing for over 25 years as a New York slip and fall lawyer. Mr. Fogel founded Fogel Law, a firm specializing in Motor Vehicle Injuries, Slip and Fall Accidents, and other areas of Personal Injury Law. He has published on various aspects of Personal Injury Law across the web.

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