Thursday, October 21, 2010

When Your Private Social Networking Site Isn't So Private

One day, Kathleen Romano fell off her chair at work. As a result, she claimed that she sustained "serious permanent personal injuries." She alleged that the chair was defective and sued the manufacturer and the distributor of the chair.

Of course Kathleen also somehow felt compelled to show on her Facebook and MySpace pages just how active her lifestyle was, and where she had recently traveled to--all during the time that she claimed her serious injuries prohibited such activity!

So, based on what it saw on Kathleen's public pages, the defendant manufacturer naturally subpoened Facebook and MySpace to obtain copies of her profiles, including those portions that were not publicly available and marked as "private" using the sites' privacy settings. Although Facebook attempted to object to the Subpoena, it was ultimately compelled to produce not only the current and historical Facebook and MySpace pages, but also the deleted pages and the pages designated by Kathleen as only available to "friends" and connections.

The trial court recently decided in Romano v. Steelcase, Inc. that the production of such information was not a violation of her privacy because the publicly available information, namely the photos of her active lifestyle, supported the belief that the information sought by the Subpoena might be relevant to Kathleen's inconsistent claim of serious injury.

This appears to be a case of first impression. As the trial court pointed out, to date, there does not appear to be a case in New York directly addressing the privacy issue raised. Citing instead a Canadian court case also involving a Facebook page, the court explained that "to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website . . . risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." Well, now there is case precedent in New York and I am sure we will be seeing other cases on this issue soon.