These days, almost everyone has a social media account, especially a Facebook profile. We may think we are safe by putting our settings on “private” to prevent strangers from viewing our posts and photos of family and friends. However, in a recent NY lawsuit, the defense argued the plaintiff’s private Facebook posts and messages should be accessed in order to prove the severity of her personal injury claim; making New York State residents wonder, are our Facebook posts actually private?

Are Private Facebook Posts Private During a Lawsuit?

For years now, the issue of whether private Facebook posts may be called into question in the event of a lawsuit has been debated in the courts. Personal injury attorneys have been warning their clients for years against posting on social medial websites, including, Facebook, Twitter, and Instagram, just to name a few, and the possibility of their posts coming back to haunt their case.

New York Personal Injury Case That Sparked the Change

In Forman v. Henkin, a woman in New York City who fell off a horse due to a malfunctioned stirrup hired a personal injury lawyer and sued the owner of the horse. She suffered traumatic brain damage that caused cognitive deficits, memory loss, and difficulty in communicating. In fact, she stated that she can no longer use a computer, and she feels socially isolated due to her injuries. In the lawsuit, the defense argued that the records of the woman’s now deactivated Facebook posts were necessary to evaluate the extent of her injuries and her credibility, as she claimed she was extremely active on social media prior to the incident. The court was required to rule as to whether the plaintiff’s so-called private posts were discoverable as potential evidence in her personal injury lawsuit.

New York Appellate Court Ruling on Private Facebook Posts

Once presented the arguments, the Court of Appeals said that social media material can be compared to information locked in a file cabinet, and should be available to litigants if it is relevant.  By limiting access to only a person’s public posts online, it conflicts with New York’s rules of discovery in a trial. Chief Judge Janet DiFiore associated information on Facebook to records in a medical lawsuit. A patient may consider her files to be private, but she may have to turn them over in the event of a lawsuit if they pertain to the case.

In the case of Forman v. Henkin, the trial court granted access to some nonpublic portions of the plaintiff’s Facebook account, including photos she posted before and after the accident and the character amounts in her private messages to see how much she is using the computer. The midlevel Appellate Division argued they had gone too far but the Court of Appeals overturned that decision and said that leaving it up to the plaintiff would allow the “account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account,” DiFiore claimed.

How Your Social Media Can Affect Your Case in New York

Many victims do not realize how their social media profiles can affect their personal injury claims. We typically show the positive and highlights of our lives on our profiles, and neglect to show the low points, including physical or emotional injuries and how they may be affecting our lives. If you are concerned, in a previous blog, we discussed, in detail, how social media can affect your case in New York State.

If you’ve been injured in an accident, New York lawyer, Brindisi, Murad, Brindisi and Pearlman, can help. We know a lawsuit can be confusing, especially with the involvement of social media platforms; but our lawyers have the experience and knowledge to walk you through the process with full transparency. Let us fight for you. Contact The People’s Lawyer for a free personal injury consultation today.

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