, Derry, New Hampshire


March 13, 2014

About the Law: Courts struggle with social media posts

Our contracting company is being sued over claims that a job was not completed up to specifications. We negotiated and made an offer, but the claim was taken to court.

Now, I find out that some of our employees were goofing around on the job and posted on Facebook pranks done while working. I don’t think it’s relevant, but it doesn’t look good. Can I keep these foolish social media posts out of the lawsuit?

Courts themselves are grappling with this issue. Even if such posts are made under privacy settings, a New York court has pointed out that the terms of service of sites like Facebook and MySpace warn that even under privacy settings, all material is posted at the person’s own risk. The court held that there’s no legitimate expectation of privacy and issued an order for disclosure of Facebook posts.

But another court ruled the other way in a lawsuit over a child hit by a vehicle outside a construction site. The mother of the injured child was asked to produce any and all Facebook postings, “statuses, photos, ‘likes’ or videos.” But on Feb. 5, the Florida District Court of Appeal quashed the request, calling it a fishing expedition having nothing to do with the accident.

The issue is that in civil law cases, very broad rules of discovery allow disclosure of anything reasonably calculated to lead to evidence that may be admissible. This is a wide open standard. Courts balance that against the valid but vague objection based on requests that are overbroad, unduly burdensome and designed only to harass. Bottom line: Each case is decided on its own unique facts.

My business relies entirely on the Internet for sales. I have strong reason to believe that one of our competitors started negative search engine optimization tactics, which intentionally damage our Google rank.

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