Employees Have No Expectation of Privacy in Facebook or MySpace Profiles

facebook, myspace, online social networking, privacyFrom Nixon & Peabody:

A New York trial court recently found that an employee had no reasonable expectation of privacy in what she posted to her Facebook and MySpace pages, regardless of the privacy settings she used to restrict access to such postings. This decision adds to the growing list of cases addressing novel legal issues relating to social media, and employers can apply the court’s decision to issues that may arise in their workplaces, including investigation, discipline, and termination relating to an employee’s use or misuse of social media. 

In Romano v. Steelcase, Inc., the Supreme Court of New York, Suffolk County, considered whether a plaintiff alleging permanent physical injuries must turn over to defendants information from her social networking pages relevant to her “activities and enjoyment of life.” The public portions of plaintiff’s Facebook and MySpace pages showed content in direct contradiction to her claims that she had sustained permanent injuries, and defendants sought access to the private portions of her pages in order to gain further contradictory evidence. Kathleen Romano, the Plaintiff, had utilized the available privacy settings on Facebook and MySpace to restrict access to only those “friends” she wanted to share information with, but the court found that she could not shield relevant information from disclosure simply because she had adopted privacy settings to restrict access:   

Thus, it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity access [sic] these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

Romano v. Steelcase, Inc., No. 2006-2233, 2010 NY Slip Op 32645U, *5 (Sep. 21, 2010). The court granted Steelcase access to Romano’s current and historical Facebook and MySpace pages and accounts, including all deleted or archived content.
The court also considered plaintiff’s argument that production of the “private” portions of her social networking pages would be an invasion of her privacy under the Fourth Amendment, and held that production of these portions would not violate her right to privacy, and that any such concerns were outweighed by defendants’ need for the information.

Based on these sources, the court held that plaintiff had no reasonable expectation of privacy in the content she posted to Facebook and MySpace:

In light of the Romano decision, the employee likely has no reasonable expectation of privacy in the content posted to a social networking site, and the employer may commence an investigation based on the content it received from the third party. The employer may then hand down discipline to the employee in question based on the investigation of that content.  

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