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Social media privacy argument tenuous in court

In June, 2011, a Manhattan interior decorator named Kelly Forman went for a ride on a horse belonging to her friend Mark Henkin. Henkin was apparently wealthy. Not only did he keep horses, but he hired staff to look after them. The ride turned tragic when one of Forman’s stirrups broke off the saddle and she fell to the ground. She sued.

A New York Daily News article quoted Forman’s lawyer as saying that Henkin admitted “that his staff had not properly maintained the straps on the leather stirrups.” If Henkin really made that admission, then most of the classic elements of a negligence claim were established, leaving only the question whether Forman was injured in the fall and, if so, how badly.

Very badly indeed, Forman reported. She said she suffered “traumatic brain injury and spinal injuries, causing cognitive deficits, memory loss, inability to concentrate, difficulty in communicating and social isolation, severely restricting her daily life.” In a written statement, she alleged that her “social network went from huge to nothing.” She “had difficulty using a computer and composing coherent messages. … (A) simple email could take hours to write because she had to go over written material several times to make sure it made sense.”

The case moved into the discovery phase. During discovery, the parties are required to reveal the evidence they intend to present at trial. This allows each side’s lawyer to evaluate the strength of the other side’s case. But discovery also permits lawyers to ferret out information the other side would prefer not to reveal. Ferreting requires knowing what questions to ask. Perhaps taking their cue from Forman’s reference to her “social network,” Henkin’s lawyers asked her to sign an authorization allowing them to examine her entire Facebook account.

Absolutely not, Forman replied. Her Facebook page was private, shared only with friends of her choice. It was like asking her to turn over her diary and photo albums. Beyond the sheer invasion of privacy, Henkin had no basis for believing anything in Forman’s Facebook feed undercut her claims. He was just hoping it might. He was engaged in a “fishing expedition,” which is actually a technical legal term.

There followed a multiyear battle through New York’s court system to determine whether private Facebook pages, visible only to friends, must be revealed to adversaries, too. One judge described a Facebook feed as “a self-made portrait of (a person’s) day-to-day life” comparable to the kinds of surveillance videos made by insurance companies who suspect a claimant of faking an injury. Another judge said that was a ridiculous analogy, since claimants are subject to surveillance only when out in public, visible to every passerby. That is nothing at all like posting to a private social media page.

It’s certainly true that Facebook pages aren’t private in the traditional sense of whispering a secret in your best friend’s ear. According to a Pew survey, the median Facebook user has 200 “friends,” which makes a “friends-only” post more like shouting at a packed wedding reception. On the other hand, even several thousand Facebook friends is only a tiny fraction of the public. Almost all the world is excluded. The judges’ traditional concepts of public and private were developed to describe a life that doesn’t exist online.

A Facebook feed is unlike a surveillance video for another, even more fundamental reason, too. People curate their feeds. They are selective about what they post. The phenomenon of Facebook envy exists because so many people share only the highlights of their lives, promoting an image of perpetual pleasure and positivity. While it’s probably true that most people’s Facebook posts bear some relationship to their real lives, the relationship can be complicated. For example, it’s easy to imagine that a person who suffers from chronic pain might feel better after posting a smiling selfie. The unreal and aspirational aspects of social media were entirely ignored by the debating judges.

Earlier this month, New York’s highest court ruled against Forman, requiring her to disclose all photos she posted to Facebook. The key point for the court was that she claimed she could no longer engage in the activities she previously enjoyed and had difficulty using a computer. It was reasonable, the court concluded, to suppose her Facebook feed might contain a record of her activities while also revealing her skill with the computer. Therefore, Henkin was entitled to poke around her account for evidence to use against her. If you’re ever involved in litigation and tempted to post to social media, remember Kelly Forman and think twice.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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