I was tempted to add “and your life” to the title of this article because of how seriously social media can turn around to bite people. Despite all the useful and positive purposes social media serves in today's society, we have all heard enough horror stories to know that it can quite literally ruin careers and lives. The law is grappling with the role of social media in lawsuits. In practically every personal injury and employment lawsuit today, the defendant will request access to the plaintiff's social media accounts including, Facebook and Twitter. Because, historically, defendants are entitled to any information that is “relevant” to the lawsuit, this can open up a whole can of worms and expose a plaintiff's entire social media presence to scrutiny. Courts have been attempting to place some limitations on a defendant's access to a plaintiff's social media. For example, in New York, generally, a defendant must make some factual showing as to what they believe is contained on a Facebook page and why it is relevant. Sometimes the court will review the Facebook page prior to allowing the defendant to look at it, or may require the plaintiff to reveal only certain categories of information.
5 Ways Social Media Can Have a Negative Impact on a Plaintiff's Lawsuit:
- It can undermine your claim of damages. This often arises in personal injury lawsuits. For example, you are claiming that a car accident has prevented you from enjoying sports or other hobbies, but your Facebook page shows you participating in a charity walk. Or you are an employment client claiming that your employer's discrimination has caused you to become depressed and not leave the house, but your Facebook page shows you partying on New Year's Eve.
- It can undermine your claim that you were not able to follow your employer's attendance procedures. Sometimes an employee has been terminated for not following his or her employer's attendance procedures such as calling in an hour before not coming to work. This often arises in Family Medical and Leave Act (FMLA) cases. The employee's response is generally that they were not able to follow the employer's procedures because they were in the hospital or otherwise unable to do so. Some employers have been able to present evidence that the employee was making Facebook posts while in the hospital, seriously undermining the claim that the employee was unable to call in.
- It can undermine your claim that you were the victim of sexual harassment or a hostile work environment. The law generally requires that an employee claiming a hostile work environment was subjectively offended by the harassment, for example lewd jokes. When that employee, however, has a history of making lewd or off-color jokes on social media, the claim that he or she was offended can be called into question.
- Social media can be used to contradict or impeach your claims or statements. So if you deny having romantic relationships with co-workers or deny that you were at a certain time or place, social media can be used to verify or disprove such claims.
- This last item is less about your lawsuit and more about losing your job in the first place. Many employees wrongly believe that they have First Amendment “free speech” protection at work. Private employees, however, do not. While some speech related to your employment may be protected, there is no general freedom of speech in the private workplace. Therefore, if you make off-color or inappropriate comments or post questionable photographs on your Facebook page, you can be terminated. Public employees do enjoy some First Amendment protection but it is very limited.
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