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What is ‘Private’ on Facebook?

Legal Developments, Litigation

What is considered “private” on Facebook? After a recent unanimous ruling by the New York Court of Appeals, it turns out that making social media posts as private is not enough to exclude them from evidence if they are necessary and material to a claim or defense.

Kelly Forman brought a claim against Mark Henkin, a horse owner, for negligence after alleging she suffered serious brain injuries from falling off his horse due to a stirrup ripping off the saddle. During the discovery process, Henkin attempted to gain access to Forman’s entire private Facebook account, “contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a).”[1] Henkin wanted to verify Forman’s credibility and ensure that her claims accurately portrayed the extent of her injuries, as Forman claimed that the injuries “negatively impacted her ability to read, write, word-find, reason and use a computer.”[2]

The Court of Appeals held that the lower court erred in its ruling which precluded Henkin from obtaining access to the private posts and pictures. The court did not grant access to the Forman’s entire Facebook account, as it would constitute an “unnecessarily onerous application of the discovery statutes”.[3] However, the court did grant access to materials that were necessary. The court explained that “a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials.”

So where is the line drawn? Granting access to private Facebook posts is not necessarily an “unjustified invasion of privacy.” The court aptly pointed out that there are many instances where “private” information is disclosed for the purposes of discovery, such as medical records. The court explained, “when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records—including the physician-patient privilege—are waived [citations omitted]. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”[4]

Individuals only have a right to privacy to an extent on social media platforms. The court clarified that granting access to private posts does not mean that the entirety of a person’s Facebook account can be subject to discovery or that courts should apply a one-size fits all approach when determining what material should be disclosed. Courts should balance the privacy concerns of the account holder and “issue  an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.”[5]

[1] Kelly Forman v. Mark Henkin. Court of Appeals of New York. Decided: February 13, 2018. Available at: Accessed on March 30, 2018.

[2] Id.

[3] Id.,. Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998]

[4] Id., see Arons v. Jutkowitz, 9 N.Y.3d 393, 409, 850 N.Y.S.2d 345, 880 N.E.2d 831 [2007]; Dillenbeck v. Hess, 73 N.Y.2d 278, 287, 539 N.Y.S.2d 707, 536 N.E.2d 1126 [1989].

[5] Id.

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