Watch What You Put On Facebook—It May Come Back to Haunt You Later

By Denice A. Gierach
August 2010

More people are using social networking sites as time goes on. The popularity of Facebook, LinkedIn, Twitter, and MySpace, to name a few, has grown exponentially in recent years. Many times people “tweet” things about themselves that no one else knows. They may also “tweet” about their bosses, previous jobs that they had, the wild times that they had at parties that they attended.

People tend to think for some reason that they do not have to worry about what they place on these sites, as there is some sort of privacy they expect. What they don’t know is that these sites do not provide them with the privacy that they desire and their disclosures on these websites can come back to haunt them later.

For instance, when a person applies for a job, they may supply their prospective employer with their resume. If they are in serious contention for that job, such employer will check out the person on the social networking sites.

As a result of whatever disclosures (including pictures) that may reside on these sites, the prospective employer may decide to not hire that person. This is well documented in the press, especially for new college graduates, who placed many a picture on the website while they were in college, expecting that all of that would be gone when they decided that it was time to get a job after their graduation.

The same is true in the law. Lawyers are investigating parties, witnesses, opposing counsel, jurors and sometimes even judges. This may result in the case that the person has being dismissed. For instance, in one case in Canada, a Vancouver woman claimed that she was no longer able to enjoy her favorite activities, such as dancing, hiking and cycling, yet photos in her Facebook profile showed her cycling and hiking after her injury. In Oregon, a teenager claimed that she was forcibly raped. She told the police that she would never willing have had sex with the defendant, yet in her MySpace page, she talked about parties, drinking and “getting some” and posted provocative pictures of herself. The case was dismissed.

The law on whether discovery of social media materials are allowed is evolving, although most courts who have been presented with this issue have allowed discovery of these materials, noting that the person must have a lower expectation of privacy where the person asserting the privacy right was the one who made the information public in the first place. Sometimes, if the court feels that there is a privacy concern, the courts may allow such discovery, subject to a protective order which is designed to allow the use of the materials in the lawsuit, but to not disseminate it to the public.

Once the courts have allowed such discovery of materials from social networking pages, the courts are generally allowing its use in court cases, if such information is relevant and treat the information much like any other information that is used in a court case.

The moral of the story is watch what you list on your pages on the social network, as it may well come back to bite you later!