Your boss can’t see that photo of you enjoying yourself at a party, right? Think again. If you are currently involved in a workers’ compensation claim or personal injury suit, you may be surprised to learn that your employer or your opponent has certain rights to access your Facebook, Twitter, and other social media accounts.
Currently, social networking content like status updates, photos, and “check ins” are neither privileged nor protected by any right of privacy – be it a public or private post. It’s important to know what your opponent can access and what you can do to protect yourself and the credibility of your case.
Know your audience.
If you currently have a case pending, you should post, tweet, and comment with the assumption that your boss will be able to see what you’re doing. If you claim that you suffered serious mental anguish after a work accident and you are tagged in photos that show you wining and dining with friends just days after your accident, even though you may be in pain, your employer could construe that evidence against you. As another example, if you allege that your injury severely impacted your ability to enjoy life, find a new job, and engage in outdoor activities, your social media posts could be viewed.
With that being said, a defendant does not have the absolute right to rummage through all of your private information.
Know your rights.
In the words of one Iowa Deputy Workers’ Compensation Commissioner: “Facebook accounts are not designed for litigation.” Your employer or any other defendant can’t gain access to your private social media content simply because there might be something relevant or because they think they can find some evidence against your claim.
Instead, a defendant has to offer evidence or another reason to back up their speculation and persuade the court that what they believe they will find can be used to support their case in court. Your opposing counsel also can’t ask your lawyer to provide them with overbroad and irrelevant information. The courts have an interest in protecting your privacy, and that includes preventing people from being overly intrusive without cause.
Don’t panic and delete.
So what if you are questioning what you have on your Facebook or Twitter? Keep your finger off that delete button!
If you erase comments, photos, or the like from your social media website that arguably would have been relevant to your opponent, it could come back to haunt you. Courts have previously stated that when an individual deletes such posts or photos, he or she is deleting with a “culpable state of mind,” and that erasing such things is not an accident, but intentional. You don’t want to give a judge or your opposing counsel a reason to believe that you are hiding something.
Technology evolves at such a fast rate that the courts are having trouble keeping up with the pace. As a result, states’ views on social media privacy are mixed. Some jurisdictions may view the right to obtain social media information more narrowly or broadly than others.
The internet is a great opportunity for self-expression and building connections. If you have any fear that your social media posts could hurt the outcome of your pending suit or claim, consult with your lawyer first before taking any action.