As we have all seen in the news, every one of the Whatsapp messages exchanged between Oscar Pistorius and his girlfriend (whom he shot to death in alleged self-defense) – has become a matter of public record and scrutiny. Privacy of personal information is generally taken as a right and privilege of human existence. But, there is no inviolable rule that one’s privacy will be protected at all times and in every context. Let us look at the circumstances in which one will be exposed to social media discovery and universal attention.
According to U.S. law, relevant information – in the form of social media content – can be sought, using a discovery request, during litigation. Courts do not allow blanket access to anyone’s profile content or postings. Any request for such access has to be relevant to the issue at hand and there must be reasonable cause to believe that the materials are particularity promising as admissible evidence. Any request which cannot validate the need for such access to social media accounts is called a ‘fishing expedition’ and disallowed. Courts will also limit the discovery, when the burden of proposed discovery outweighs the likely benefits.
This creates a dilemma. How can one know and demonstrate that anyone’s social media content contains information which will be relevant to a case– without knowing what the account contains? When an employee or customer alleges physical or emotional injury, emotional or sexual harassment, stress, or PTSD, such a claim automatically makes the plaintiff’s social media account relevant to the issue and a target for discovery.
Let us look at some cases in which social discovery has played a significant role in employment-related cases:
Between the Stored Communications Act and the restriction on e-discovery without justification; social media accounts are well protected. Employees should use good judgment when posting to social sites. Employers must be equally careful in attempting to access this information. The courts are increasingly aware of the significance of social media postings in civil litigation. Case law regarding the pursuit and preservation of information posted online or in social media sites is growing. Seek legal assistance if you have questions regarding the legality and appropriateness of your company’s policies and actions.
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