It has become standard practice in all types of litigation for lawyers to search publicly available information on social media websites. A number of legal commentators have suggested that it is malpractice to NOT perform a search of social media for publicly available information on clients, parties to litigation, witnesses and even potential jurors.
I imagine that potential employers, schools evaluating potential applicants, and even our social connections are making judgments about us simply by accessing what we have made publicly available on social media sites.
Facebook, as the most obvious example, allows you to create your own personal web page which may include, at your discretion, numerous photos and a lot of private information such as your age, employment, education, religious and political views, as well as your recreational interests. You are encouraged to connect with other Facebook users with whom you can then exchange access to their web pages and the ability to post pictures, comments and other content. In this process, you actually give up control of what is posted on your own web page. For example, with Facebook, a friend can upload a photo to his own page as well as to yours by “tagging” you. The photo will then appear among the pictures that you have selected for publication on your own page.
Other than information that Facebook itself deems public, your user name, profile picture, username and network, you, at all times, have the ability to delete the offered content from your own profile. I encourage my clients to alter Facebook’s default privacy settings to “private”, which renders everything but what Facebook itself considers public, inaccessible to anyone other than a “friend.”
Anyone who is in litigation, looking for a job, applying to school, or involved in any activity in which unfair judgments can be made by looking at your publicly available information should consider taking this step. In addition, you should also be careful about who you agree to “friend” because now your private information becomes available to that person.
If tagged unwittingly, and in a way that you wish to avoid, you may “untag” the photo. Also, by altering Facebook’s default privacy settings, you may restrict the class of persons authorized to view the tagged content. However, keep in mind that even if untagged, or if restricted to certain users, the photo will still be available for viewing on the page of the person who posted it. Only the user who posted the photo is able to remove it from the Facebook website altogether.
In litigation, parties may attempt to use what is publicly available to argue that private information posted should be made accessible. Judges in Pennsylvania have permitted counsel to access a parties private social media content in situations where the publicly posted material is inconsistent with positions taken in litigation ( i.e. where a injured person alleged permanent physical impairment and ongoing ability to enjoy life and the publicly displayed information included comments about a recent fishing trip and attendance at a car race, the Court permitted opposing counsel to access private information to further develop inconsistencies).
Keep in mind that social media sites collect and store “metadata” about their users which potentially could reveal information about your use of the site, your friends’ identities, what you saw on another user’s profile, and may even track your internet activity. All of this is potentially discoverable through subpoena or court order in litigation.
4 Rules to Follow:
1. Verify your default settings are on PRIVATE
2. Accept as a ”friend” only persons you know
3. Post only those photos, video, or commentary that you would not be embarrassed about
4. If a photo is posted by a friend that you find embarrassing, ask that it be deleted by the friend
Mark Zuckerberg, at age 19 and in the formative stages of developing what became Facebook, described people who provided him with their private information as “dumb f***s”. Make sure you are not one of them.
Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured including due to medical mistakes. Tony is the founding partner of Baratta, Russell, & Baratta and on the board for the Philadelphia VIP. Tony is a Nationally Certified Civil Trial Advocate, AV Rated Preeminent by Martindale-Hubbel and a member of the Pennsylvania Brain Injury Association (BPIA). He is also a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2015.