Are you one of the 1 billion people who has a Facebook account, or one of the 230 million who use Twitter? Have you ever thought about how your social media activity could come into play if you found yourself in a lawsuit? If you answered “no,” you’re not alone. Many social media users use their accounts to post about work-related matters, never considering the possible ramifications, from being fired for internet speech, to having your own posts used against you, to being sanctioned for deleting social media accounts during litigation. Social media often takes a starring role during employment litigation, and courts have struggled to keep up with technology, resulting in numerous and often conflicting legal opinions about the relevance, privacy, and burden of producing social networking information.
One of the few relatively well-settled principles governing social media in litigation is that a plaintiff’s internet postings are at least potentially relevant, as they may reflect her emotions, her physical or mental conditions, her efforts to obtain subsequent employment, the identity of potential witnesses with knowledge of the facts giving rise to the case, and other matters relating to claimed damages. Some courts look to whether an employee had privacy settings in place that would keep her Facebook posts out of the “public” arena – for example, by limiting her posts only to those individuals whom she had “friended” on Facebook. Other courts, however, have held that a plaintiff could not reasonably have had an expectation of privacy because there are no controls to prevent one of her Facebook friends from sharing the information with others.
Some plaintiffs, in an effort to prevent such information from coming into play during a lawsuit, have deleted certain posts or their social media accounts altogether. They don’t think of this as the destruction of evidence – and these same people would never destroy hard documents related to their case – but courts have disagreed. A New Jersey plaintiff in a personal injury action deleted his Facebook account after litigation had commenced and defense counsel had already requested access to the account. Although he argued his actions were excusable, the court did not hesitate to find that his conduct amounted to deliberate destruction or failure to preserve evidence, referred to as “spoliation.” As such, the court agreed to instruct the jury that they could infer that the destroyed evidence would have been favorable to the defendant.
Although litigation tends to focus on the use of social media by plaintiffs, an employer’s use of social media can likewise be relevant. Posts to corporate social media accounts or pages may be defamatory towards a current or former employee. Moreover, while an applicant’s resume and application materials often make it impossible to determine the applicant’s race, age, religious beliefs, or membership in a protected class, an employer who conducts internet searches concerning applicants and learns of this information exposes itself to liability under federal discrimination laws if the employee can show that that information was the reason he or she was not offered the job.
The issues and case law vary too greatly for there to be any single winning approach to handling social media issues that arise during litigation. But it is critical that employees and employers be deliberate and thoughtful in their use of social media and internet postings.