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Online Privacy: The Cost/Benefit Analysis

No Online Privacy on Facebook

Hmmm- are we surprised? In the event you are one day involved in a lawsuit, be it family related or otherwise, your old Facebook pictures and posts are likely fair game. Likewise, your Linkedin, Instagram, Twitter and maybe even Snapchat may be available for the opposing party and their lawyers to review. Yikes, online privacy is at an all-time low.
When considering the article below, do we have a reasonable expectation of privacy in anything? Our smart-phones and internet searches are relaying data about our likes, interests, locations and buying habits all day long. Major email providers are “mining” the content of our email without our knowledge or consent. BUT, what is the alternative? Cash. In person banking. Letters. Do we really have a choice to embrace a “reasonable expectation of privacy” and not opt out of our culture entirely. What do you think? What do you suggest?

Florida Court Finds No Expectation of Online Privacy on Facebook

The case of a possibly malingering plaintiff has led a Florida court to rule that Facebook users have to right of online privacy in the photos they put on social media.
There has been much debate lately — sparked by the trend of self-written “privacy disclaimers” popping up all over social media — about how the use of social media outlets coincides with social media users’ privacy expectations. A three-judge panel in Florida on January 7, 2015, effectively settled the debate in the Fourth District after ruling there can be no reasonable expectation of online privacy on social networking sites.

Slip and fall at Target

This decision both sets a precedent for personal injury litigators in Florida and poses serious implications for personal injury plaintiffs, such as plaintiff Maria Nucci. It was her appeal regarding her recent slip-and-fall case against Target Corp., requesting relief to quash an order for production of Facebook photographs, from which this precedent-setting determination was made.
Maria Nucci was employed by Target Corp. where, she alleges, she suffered a severe slip-and-fall at work. After filing suit against Target Corp. for the harm she sustained, a deposition took place in September, 2013, during which Target requested access to Nucci’s Facebook profile for the purposes of obtaining photographs. Target thought the photographs to be directly relative to the law suit because the law suit itself puts Nucci’s physical and mental condition into play.
Two days after Nucci’s objection to releasing the photographs during her deposition, 36 photographs vanished from her Facebook profile page. Target moved to compel inspection of Nucci’s Facebook, arguing it should be permitted to see the photos because it would allow for a comparison of her current physical condition and her life prior to the incident.

Powerfully relevant

The three-judge panel, consisting of Justices Gross, Stevenson and Gerber, noted the photographs at issue are “powerfully” relevant in this case. Acknowledging the ability of these photos to determine how exactly the plaintiff’s quality of life changed after the incident, the justices pointed to Target’s store surveillance footage. The recording, which was captured right after Nucci sustained her injuries and shows Nucci carrying two heavy objects, suggests Nucci potentially grossly exaggerated her injury claims.
Originally, the court denied Target’s request for production of the photographs as too vague, but later granted the motion in part once Target conceded the request be limited only to photographs depicting Nucci. Nucci, of course, argued the privacy setting on her Facebook account gave her a reasonable expectation of privacy, because it generally prevents the public from accessing her page without her permission.
The very nature of Facebook and all social media accounts weakened Nucci’s argument when the judges pointed to the acknowledgment all Facebook account users must make when originally creating their accounts. Facebook explicitely does not guarantee online privacy and users must acknowledge that their personal information may be shared with others.

Minimal expectation of privacy

“Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships,” said the District Court of Appeal of the State of Florida, Fourth District. Stating Nucci has “but a limited privacy interest, if any, in pictures posted on her social networking sites,” the panel found the relevance far overwhelmed Nucci’s minimal expectation of online privacy on social networking sites.
Nucci has been ordered by the court to produce copies of pictures she had uploaded onto all social media sites and all pictures associated with cell phone accounts she had used in the last two years. Nucci did not challenge the order as it related to her cell phone accounts.
According to the attorneys for Target Corp., “. . . [T]he courts in Florida now have a definitive rule to follow with regard to what is discoverable in terms of the newly emerging issue of social media in the context of personal injury cases. Before this ruling, the trial courts throughout the state of Florida varied significantly in terms of what was discoverable.”

The case is Maria F. Leon Nucci and Henry Leon v. Target Corp. et al, case number 4D14-138 in the District Court of Appeal of the State of Florida, Fourth District.

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