Can Social Media Be Used Against Me In a Court of Law?
By Pete DeFilippis, Esq.
So far, more courts’ rulings seem to come down in favor of privacy interests and less in favor of wholesale invasion of privacy. The Courts in New York are generally putting strict limitations on Defense requests for access to online activities which have no established basis in fact. According to the Appellate Division for the First Department, covering Manhattan and The Bronx, the contents of some “public” portion of the social media profile or disclosure by the Plaintiff during deposition have to indicate the online information contradicts or conflicts with Plaintiffs’ claims. Arguing such material may lead to the discovery of relevant evidence is not enough to force the Plaintiff to make private account contents available to the Defense. Based on recent decisions, the Defense must first display relevance on this point using facts as keys to open the doors to further disclosures. It is not the Plaintiff’s burden to prove irrelevance.
Participation in online platforms alone is not sufficient to compel the Plaintiff to provide the Defense access to social media accounts or to have the court conduct a private inspection of the account’s usage. Defendants must first and foremost identify information in a Plaintiff’s Facebook account at odds with the alleged restrictions, disabilities, or losses to warrant this level of obtrusiveness. If the Defendants cannot demonstrate the existence of these facts in the social media, the Court will not press the Plaintiffs to comply with the Defense request.
Arguments that Facebook postings or Twitter feeds may potentially reveal daily activities contrary to Plaintiff claims amount to nothing more than baseless requests by the Defense to conduct a “fishing expedition.” Without facts to back up their demands, Defendants may find their attempts to access Plaintiff Instagram or other social media site content receiving the “thumbs down” from the courts.
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