Court Rules that Deleted Facebook Posts are Fair Game

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If you think that because your Facebook or Twitter profile is set to “private” that it means that you can control who will see what you post, think again. In fact, even if you delete what you have posted – in your private account – you can still be forced to let others see it, even after you’ve deleted it. That’s the Court ruling in a recent case involving plaintiff Kathleen Romano, who may have deleted postings, made to her private Facebook and MySpace accounts, which would be beneficial to the defendant.

You see, Ms. Romano sued the Steelcase chair company after she fell out of one of their chairs due to the chair being, Romano claims, defective. Romano claims she sustained injuries so bad that she had to have several surgeries, and has been bed-ridden, in pain, and unable to leave her house ever since she had her great fall.

However, Steelcase was aware through the public portion of Romano’s profile that her Facebook profile picture not only showed her standing outside her home smiling and looking decidedly pain-free, but that behind her private Facebook wall may have been revealing information about, among other things, a jaunt to Florida – both things (and possibly more) which tended to refute her claim that she was bed-ridden and unable to leave the house.

While Facebook fought a subpoena served by Steelcase, requesting the information in Romano’s profile, the judge in the case held that Steelcase has a right to see it, and that Romano has no legitimate claim to a legal expectation of privacy, even though her profile is set to private and she had deleted the information from her profile.

Says the judge, Justice Jeffrey Spinner, “Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action… Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff’s injury…. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

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Justice Spinner goes on to say that “To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial…when Plaintiff [Romano] created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.”

The judge also points out that Romano – like millions of other Facebook users – agreed to the portion of Facebooks privacy policy that says “Please keep in mind that if you disclose personal information in your profile or when posting comments, messages, photos … or other items, this information may become publicly available.” {Emphasis ours.}

And so, the Court has ordered that Steelcase and other defendants in the case may have access to Romano’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information…”

For those of you confused as to how it is possible that someone can access something which has been deleted, there are any number of ways that this is possible, including that there are almost always backup copies, and that depending on how a given system is run, there may be archives, or other types of copies even after the primary data is deleted.

In the case of Facebook, they state plainly that “Removed and deleted information may persist in backup copies for up to 90 days, but will not be available to others.”


Of course, the unstated caveat to “not available to others” is “unless we are ordered by a court or law enforcement entity to turn it over.”

And, indeed, Facebook goes on to say that “We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available. We are not responsible for third party circumvention of any privacy settings or security measures on Facebook.”

The lesson here is, of course, this: Don’t post anything to any social media venue that you wouldn’t want to have displayed on a billboard along the side of a busy highway.

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3 thoughts on “Court Rules that Deleted Facebook Posts are Fair Game

  1. The truth will out, as they say.

    If the case had gone the other way, no doubt the lady would not be so outraged if she were forcing the company to reveal deleted posts that proved they knew that the chair involved was defective.

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