In 2019, it is estimated that there will be around 2.77 billion social
media users around the globe. Social media affects the the way we work,
the way we live, the way we socialize, and more recently, the way we litigate.
As more and more courts across the country are finding social media content
is discoverable if it is relevant to the issues in controversy, at least
one court of appeals in Georgia recently found that a social media provider
can be sued for negligence if the platform “encourages” dangerous
activities, such as speeding.
It’s no secret that people turn to their social media profiles to
express themselves openly and often in a carefree way. Many do so because
they believe their posts, opinions, and comments are “private”
simply because they selected the option from their social medial provider
to make content viewable only to those they allow access.
But privacy in a social media context is not the same as privacy in court
of law, as the New York Court of Appeals recently affirmed in
Forman v. Henkin, 2018 N.Y. Slip Op 01015. In
Forman, a personal injury plaintiff alleged spine and traumatic brain injuries,
cognitive deficits, memory loss, problems writing, and social isolation
after she fell from a horse owned by the defendant. The plaintiff claimed
that she became a recluse after the accident, and had trouble using a
computer, writing coherently, and writing simple emails.
The plaintiff testified at her deposition that she had previously maintained
a “private” Facebook account to which she had posted frequently
before the accident, including photographs of her pre-accident lifestyle,
but which she claimed she had closed some six months after the accident.
The defendant sought access to plaintiff’s complete “private”
Facebook account, asserting that the Facebook material was relevant to
the issue of the plaintiff’s injuries and to her credibility. The
defendant further argued that timestamps on Facebook messages would indicate
the amount of time it had taken the plaintiff to write a post or to respond
to a message. The trial court ruled in favor of the defendant and the
plaintiff appealed. The appeals court modified the trial court’s
ruling by narrowing the scope of the disclosure to only those photos posted
on Facebook which the plaintiff intended to use at trial.
In reversing the appellate court’s ruling, the Court of Appeals reinstated
the trial court’s order allowing for the discovery of all photographs
that plaintiff had posted “privately” on Facebook before the
accident that she intended to use at trial, all photographs of herself
that she posted after the accident (excluding any that depict nudity or
romantic relationships), and all post-accident Facebook records which
contained timestamp data, including the number of characters or words
in a message, but excluding the content of the messages.
In addition to citing to legal principles in favor of broad discovery,
the Court held that the appellate court erred in implicitly accepting
the Facebook categories of “public” and “private,”
and in applying a higher threshold for disclosure to Facebook’s
“private” data. The Court explained that applying a higher
threshold for disclosure to Facebook’s “private” data
“effectively permits…the account holder to unilaterally obstruct
disclosure merely by manipulating ‘privacy’ settings.”
In refuting the plaintiff’s assertions that disclosure of social
media was an unjustified invasion of privacy, the Court reasoned that
“even private materials may be subject to discovery if they are
relevant,” citing to the discoverability a personal injury plaintiff’s
medical records as an example.
As New York’s top court joins a number of other state and federal
district courts in expanding the scope of discovery to include social
media content, a Georgia appellate court appears to be expanding the scope
of viable defendants in a personal injury action to include social media
companies, such as Snapchat, Inc.
Maynard et al. v. Snapchat, Inc., et al., a Georgia appellate court ruled, on June 5, 2018, that a personal injury
action could be brought against Snapchat, Inc. for the alleged negligent
creation, design, and maintenance of its “Speed Filter.” Snapchat’s
Speed Filter documents the speed the user is traveling and overlays the
speed onto a picture of the Snapchat user, which the user can share with others.
The plaintiffs allege that the defendant teenage driver caused severe and
permanent injuries to the plaintiff driver while using the Snapchat Speed
Filter. The plaintiffs claim that the teenage driver sought to reach 100
mph and used the Speed Filter to show her friends how fast she was traveling,
and to win a “trophy” from Snapchat. The defendant driver
was traveling at 107 MPH when the accident occurred.
Ruling in Snapchat’s favor, the trial court dismissed the lawsuit
citing to the Communication Decency Act (“CDA”), which protects
online publishers of third-party content from liability. In reversing
the dismissal, the appellate court ruled that CDA immunity does not apply
in this instance because no third-party user content was published. Rather,
the plaintiffs seek to hold Snapchat liable for the negligent creation,
design, and maintenance of the Speed Filter, which they claim encouraged
and facilitated the teenage driver’s excessive speeding.
Whether the plaintiffs will prevail against Snapchat under this theory
of liability remains to be seen. What is clear is that social media is
poised to continue to revolutionize how –
and who – we sue.