January 23, 2015 Practice Points

Florida Appellate Court: No Right to Social Media Privacy

For defendants, another valuable tool in responding to personal-injury claims by ensuring access to relevant information regarding a plaintiff’s physical injuries and quality of life. For plaintiffs, another cautionary reminder of the relevance and potentially damaging impact of a client’s social-media postings.

By Robin E. Perkins and Casey G. Perkins

On January 7, 2015, in Nucci v. Target Corp, et al., the District Court of Appeal of the State of Florida, Fourth District, upheld a lower court’s order compelling plaintiff Maria Nucci to produce photographs originally posted to her Facebook page. No. 4D14-138, 2015 WL 71726, -- So. 3d -- (Fla. Dist. Ct. App. Jan. 7, 2015). The court held there is little, if any, right to privacy in photos posted on Facebook or other similar social-networking sites. In this case, the plaintiff asserted personal injuries resulting when she slipped and fell on a foreign substance in a Target store. Specifically at issue on appeal were more than 30 photos the plaintiff posted on Facebook and then removed shortly after the photographs were discussed during her deposition.

The plaintiff objected to Target’s written request to produce the photos, asserting that her use of Facebook privacy settings created a right to privacy, and further that the Federal Stored Communications Act (FCSA) prohibited disclosure of her Facebook photos. The court balanced the plaintiff’s purported right to privacy against the relevance of the photos to her damages claim. While the court recognized that Florida’s constitution provides a broader right to privacy than the U.S. Constitution, it nonetheless held that photos posted on social-networking sites are neither privileged nor protected by any privacy rights, despite the use of privacy settings.

This ruling echoes similar recent decisions across the country. In Tompkins v. Detroit Metro. Airport, the U.S. District Court for the Eastern District of Michigan held that “material posted on a ‘private’ Facebook page, which is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.” 278 F.R.D. 387, 388 (E.D. Mich. 2012). The New York Court of Appeals reached a similar result holding that “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.” Patterson v. Turner Constr. Co., 931 N.Y.S. 2d 311, 312 (N.Y. App. 2011). Likewise, the U.S. District Court for the Central District of California noted that content posted to social networking sites is not privileged or protected, and requests for such information therefore need only be reasonably calculated to lead to admissible evidence. Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566, 570 (C.D. Cal. 2012). Indeed, in Nucci, the Florida Appellate Court recognized that discovery requests should be reasonably tailored to lead to discovery of admissible evidence, and acknowledged that Target’s requests met that standard.

The court gave short shrift to the plaintiff’s privacy claim pursuant to the Federal Stored Communications Act. It held that while the FSCA prohibits providers of communication services from divulging users; private communications, it does not apply to the individual users themselves. The court also rejected the plaintiff’s relevance objections, holding that when personal injuries and quality of life are at issue, photos posted on social-media websites “are the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality” and are therefore “powerfully relevant to the damage issue.”

For defendants, this opinion provides another valuable tool in responding to personal-injury claims by ensuring access to relevant information regarding a plaintiff’s physical injuries and quality of life. For the plaintiffs’ bar, this opinion serves as yet another cautionary reminder of the relevance and potentially damaging impact of a client’s social-smedia postings.

Robin E. Perkins and Casey G. Perkins, Snell & Wilmer L.L.P., Las Vegas, NV


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