An individual’s right to privacy in social media is one of the major contemporary issues in civil litigation. A plaintiff may sue the defendant to recoup the costs of injuries upon which the defendant may search the plaintiff’s social media content in the hope of finding information that would help in disapproving his (defendant) liability or damages. This prompts the plaintiff to claim that his rights to privacy have been violated upon which the court must decide. This was the major issue in the case Horizon Blue Cross Blue Shield of New Jersey and two patients. However, cases involving the right to privacy are so specific. Therefore, it is difficult to determine a single principle or set of guidelines that would help in solving the issue.
Nucci v. Target Corp., No. 4D14-138, 2015 is one of the cases that highlights the use information posted on social media in litigation. In the case, Nucci, the plaintiff incurred physical injuries while she was shopping at Target. Target sought to get the plaintiff’s Facebook photos up to two years before the incident to determine how the physical injuries had affected the plaintiff’s quality of life so as to determine the extent of her loss. The court agreed that the plaintiff should produce the pictures to determine the extent of her loss due to the physical injuries (Perkins & Perkins, 2015).
The ruling on a case on right to privacy is dependent of the state where the lawsuit is filed. The case involving Nucci and Target Corp. was filed in Florida. Florida is different from other states as individuals in the state have a constitutional right to privacy. However, most of the other states do not have such a right. These states are controlled by the federal constitutional right to privacy. However, this right is only applicable to actions taken by the government. Therefore, in other states for Nucci to invoke the right to privacy in order to stop the defendant from producing accessing the pictures, the defendant would have to be the government.
The Florida court explained that the right to privacy does not hold unless there is a ‘legitimate expectation of privacy.’ The court ruled that information posted on social networking sites are not privileged or protected by any right to privacy as prescribed in the constitution. This is regardless of the privacy settings of the individual in question. In so doing, the court’s ruling was in accordance with the ruling of other courts that there is no ‘special privilege’ or protection on the content shared through social networking sites. The court also ruled that the photographs posted in Facebook had a significant relevance on the issue of damages.
Generally, hearsay information is not admissible in court unless it falls under certain exceptions. In State of Ohio v. Greer, no. 91983, 2009, the court ruled that information shared on social networking sites should not treated as hearsay. Therefore, the statements are admissible in court. This is regardless of whether the individual shared the information with family and friends, to a closed community or network, or using a pseudonym in second life (Nelson, 2012).
Employers may also use information posted on social networking sites as evidence. Several employees have been fired due to postings on social networking sites. This highlights the fact that it is not wrong for an employer to make an employment decision while referring to information they can obtain from social networking sites. However, employers should not discriminate employers based on gender, race, religion, disability or other characteristics stipulated in employment laws. The right to discovery of information during litigation and admissibility of the information in court are two different issues. Assuming an employer can obtain information from social media as evidence two approaches may be used to determine whether the information in admissible in court. These include the Texas approach and the Maryland approach (DiBianca, 2014).
In the Texas approach, the employer must be able to prove the authenticity of the information for it to be admissible in court. Therefore, if for example the employee claims not to have written the information on the social networking site, the employer should provide evidence to provide that the employee wrote the post. On the other hand, the Maryland approach imposes a higher standard of proving the authenticity of the post on social networking sites. For example, the employer ask if the employee wrote the post and search the internet history or hard drive of the employee’s computer to determine whether the employee wrote the post on social networking sites. Courts that use the Maryland approach acknowledge the fact that the individual in question may not have posted the information posted on social networking site. Therefore, the information may be fake or inauthentic (DiBianca, 2014).
In Parker v. State of Delaware, No. 38, 2013, the court ruled that the court used the Texas approach in its ruling. The court acknowledged that the evidence from social networking sites may have been falsified. However, it claimed that the evidence should be treated like other evidence, which may also be falsified. Therefore, if an individual introduces information on social media as evidence, the individual must be able to use other means of verifying the information as stipulated in the Ruled of Evidence. Therefore, the individual may use witness testimony or corroborative circumstances to explain the process or systems that helped in generating information from social media (DiBianca, 2014).
Other courts should strive to adopt this approach as it is correct. Courts should not make it difficult to authenticate information from social media simply because it is difficult to authenticate and it may be falsified. This is due to the fact that it is possible to falsify all types of evidence. It is also difficult if not impossible to obtain verification from Facebook or other social networking sites. This is due to the fact that Facebook or other social networking sites cannot release so much information it at all they can if there is no criminal subpoena or written consent from the user of the social networking site.
The above issues necessitate people to adhere to several rules when posting on social networking sites. People should ensure that they do not post anything that they would not like other people to see on social networking sites. This is despite the filters that one may have created to restrict information that other people can see. One should also be aware of the potential dangers of using networking sites. Therefore, people should careful on what they post in location specific posts. For example it wrong for an individual to post that he will aware from home for a certain period of time as buglers may use this information to break into the individual’s home. People should not also over-share personal information. People should also ensure that they do not trust anyone on social networking sites.
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