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A cautionary tale from New York where a judge of the Supreme Court of New York State has recently held that information voluntarily placed on Facebook and MySpace pages are discoverable, and that doing so would not violate the plaintiff’s right to privacy.

The plaintiff, Romano, claimed in a lawsuit that she sustained permanent injuries as a result of an accident and also that she could no longer participate in certain activities and her enjoyment of life was impaired. As part of its defense, the defendant brought a motion to obtain complete access to the plaintiff’s current and historical Facebook and MySpace pages and account.

Romano’s Facebook and MySpace profiles have been marked private by Romano using the websites’ privacy settings, and the content is not accessible to the defendant. Defendant sought access to determine whether the plaintiff has uploaded certain information that would be inconsistent with her claims concerning the extent and nature of her injuries.

In a somewhat cynical opinion, the court allowed access to the information reasoning that precluding the defendant from accessing the plaintiff’s profile would essentially be condoning her attempt to hide relevant information behind the self regulated privacy controls provided by Facebook and MySpace. In an even greater stretch of logic, the court further held that it was reasonable to infer from the limited postings of the plaintiff’s public Facebook and My Space profile pages that her private pages may contain materials and information that may lead to the disclosure of admissible evidence.

Since Facebook and MySpace have explicit policies indicating that there is no guarantee of complete privacy, when the plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with other, notwithstanding her privacy settings, as this is the purpose of these social networks. Since the plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.

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