By Doyice Cotten
Bill McMillen, Sr., was injured when he was rear-ended in a stock car race. He claimed substantial injuries including some permanent impairment and loss of general health, strength, vitality, and an inability to enjoy certain pleasures of life (McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270). At issue in the case was whether McMillan could claim confidentiality or privilege in regard to materials he placed on his social network site – Facebook.
After reviewing the public portion of McMillan’s Facebook site on which the defendant found reference to a fishing trip and attendance at the Daytona 500 race, Hummingbird requested the name of the site, his user name, login name, and password to determine whether some of his damages claims were untrue.
The court said that as a general rule, the law disapproves privileges and that exceptions are not lightly created. It stated that such sites are available to serve as forums to divulge personal and private matters; hence, “it would be unrealistic to expect that such disclosures would be considered confidential.”
Facebook, itself, warns the user that even if material is removed from the website, it may remain available to users to which it was sent if it was copied or saved and could be shared further by that recipient. It further warns that Facebook may disclose information pursuant to subpoenas, court orders, or civil or criminal requests if they have a good faith belief that the law requires them to respond. Further, they can share it with companies or other entities to prevent fraud or other illegal activity.
The court ruled that the Facebook information be made available to the defendant and instructed McMillan that he was not to alter or delete any material.
Risk Management Notes:
1. Social network postings are not confidential. Be careful what you post on such a site.
2. If there is an incident or injury at your business, comments should not be posted on a social network site – as Mr. McMillan found out. Note – it may well be that emails would be treated the same way by the courts.
3. Also remember that once you post something on your site – whether personal or business-related – you have no control over who sees it.
4. Consider the frequently heard statement “The internet is forever!”
Photo credit goes to marcopako”s photostream (http://www.flickr.com/photos/marcopako/2391747442/sizes/s/).