Can You Sue for Invasion of Privacy if Someone Reposts an Instagram Photo?

If a basketball player posts a public photo to Instagram, and then another basketball player reposts the photo, can the first basketball player sue for Invasion of Privacy, Intentional Infliction of Emotional Distress, Defamation, and General Negligence?

The answer is yes, you can sue, but you will not survive a motion to dismiss. That is the lesson from Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 1 (E.D. Mich. Apr. 2, 2015).

US District Judge Avern Cohn started this opinion in the most logical place: Instagram’s terms of service. The Court quote Instagram’s FAQ’s and privacy statement as follows:

Instagram is a social media website that describes itself as a “fun and quirky way to share your life with friends through a series of pictures.” (FAQ, Instagram.com, https://instagram.com/about/faq/ (last visited Mar. 5, 2015)) Every Instagram user is advised that “[a]ll photos are public by default which means they are visible to anyone using Instagram or on the instagram.com website.” (Id.) However, Instagram allows users to “make [their] account private” such that “only people who follow [the user] on Instagram will be able to see [their] photos.” (Id.) If the Instagram user fails to make his/her account private, “anyone can subscribe to follow [their] photos.” (Id.)

Instagram‘s privacy policy states that “[b]y using our Service you understand and agree that we are providing a platform for you to post content, including photos, comments and other materials (“User Content”), to the Service and to share User Content publicly. This means that other Users may search for, see, use, or share any of your User Content that you make publicly available through the Service.” (Privacy Policy, Instagram.com, https://instagram.com/about/legal/privacy/ (last visited Mar. 5, 2015)) The privacy policy further states, “[a]ny information or content that you voluntarily disclose for posting to the Service, such as User Content, becomes available to the public, as controlled by any applicable privacy settings that you set. . . . Once you have shared User Content or made it public, that User Content may be re-shared by others.” (Id.)

Binion v. O’Neal, 2015 U.S. Dist. LEXIS 43456, 2-3 (E.D. Mich. Apr. 2, 2015).

The Court reviewed each claim against Defendant Burke. The analysis focused heavily on Instagram’s privacy policies and Michigan law, as case was based in diversity.

The Invasion of Privacy cause of action was based on all four traditional claims: (1) “[i]ntrusion upon the plaintiff’s seclusion or solitude, or into his private affairs”; (2) “[p]ublic disclosure of embarrassing private facts about the plaintiff”; (3) “[p]ublicity which places the plaintiff in a false light in the public eye”; (4) “[a]ppropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” Binion, at *6.

All of these claims failed. First, the Court found that a publicly posted photo to Instagram by a Plaintiff could not form a claim for “Intrusion upon Seclusion.” Binion, at *7. The Court agreed with the Defendant “that no reasonable person, particularly in the social media age, would find it objectionable to obtain and repost a photograph that someone had already posted publicly.” Id.

The Court also found there was no public disclosure of embarrassing private facts or “false light” claims from reposting a photo that originated from the Plaintiff. Binion, at *7-9. There was also no appropriation, as there was no evidence that reposting the photo of the Plaintiff gave the Defendant any pecuniary benefit. Binion, at *10.

The intentional infliction of emotional distress (IIED) requires a Plaintiff prove “(1) extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) severe emotional distress.” Binion, at *11. Reposting a publicly available photo from social media does not go “beyond all possible bounds of decency” to sustain a claim for IIED. Id.

The Court’s analysis of defamation was interesting. Defamation requires (1) “a false and defamatory statement concerning the plaintiff”; (2) “an unprivileged publication to a third party”; (3) “fault amounting to at least negligence on the part of the publisher”; and (4) “either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Binion, at *12.

The Court focused on the fact there were no statements attributed to the Defendant. The Plaintiff argued that the Defendant’s posting of the photo implied the Plaintiff was mentally handicapped or his appearance made him “worthy of ridicule.” Binion, at *13.

The Court rejected these arguments. There was no evidence that the Defendant had any statements that implied the Plaintiff was mentally handicapped. Moreover, Michigan Courts have held that online statements are “statements of pure opinion, rather than statement or implications of actual, provable fact.” Binion, at *13-14, citing Ghanam v Does, 303 Mich. App. 522, 547 (2014).

The Plaintiff’s general negligence claim also failed, because there was not a legal duty between both basketball players, other than “the general duty to conform to the legal standard of reasonable conduct in the light of the apparent risk.” Binion, at *14. Moreover, the Defendant argued that his relationship with the “Plaintiff is no different than with the millions of other Instagram users who post photographs that can be shared, reposted, and commented on.” Id.

The Court agreed. There is no case law precedent that supports the legal theory that there is a “social media duty” on reposting photos with foreseeable consequences of emotional harm. Id.

Bow Tie Thoughts

The collection of Instagram photos in cases involving online torts is an interesting one. The subject photos can exist in the Instagram App, on a party’s Instagram photo online, and in the Camera Roll of the phone. The “right” image to capture for litigation can turn on the type of case. Many times simply printing the image as a PDF from Instagram.com could be all that is required. Other cases might just require a screen capture of the app on the smartphone. There are situations where collecting the photo from the smartphone is required, such as when GPS metadata is relevant. Whatever the situation, attorneys should consider what is the relevant source of information to preserve.

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Social Media Hearsay Objections

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.

The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id. 

Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.

Let’s Not Print Social Media For Productions

Here are two tips on social media discovery:

Tip One: Get an expert who knows how to collect the electronically stored information on social media.

Tip Two: Downloading a Facebook profile, printing it, and conducting document review for redactions is not the best way to produce social media.

The Defendants in Stallings v. City of Johnston City, requested the Plaintiff produce the following social media:

Each and every social media posting by Stallings from 2011 to the present concerning her employment at Johnston City, allegations of wrongdoing against her, her suspension or termination, the investigation into missing money or wrongdoing in the Water Department, her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint. This request includes all postings made by Stallings at any time on a Facebook account, Twitter, Instagram, or any other social media site.

Stallings v. City of Johnston City, 2014 U.S. Dist. LEXIS 68566, at *7 (S.D. Ill. May 19, 2014).

The Plaintiff stated that Facebook only allows for a download of data in its entirety. As such, the Plaintiff’s attorney and paralegal spent a week printing and redacting the 500 pages of the Plaintiff’s Facebook account. Stallings, at *7-8.

The Court was not thrilled with the Plaintiff’s claimed technological hardships. The first Court ordered the Plaintiff to produce the un-redacted pages of the Facebook profile, then to produce the entire un-redacted file from 2007 to present day. Id.

The Plaintiff did not identify with whom she had relevant discussions with on Facebook or whether any privileged attached to those conversations. Moreover, the Plaintiff argued that she had conversations with minors on Facebook, but not whether any of those discussions were relevant to the lawsuit. Stallings, at *8.

The Court stated it was clear that the Plaintiff had relevant conversations on Facebook about the litigation. Id. Moreover, the Court recognized that the communications could have admissions against interest and impeachment value. As such, the Plaintiff had to provide the names and residences of the individuals she communicated with on Facebook. Stallings, at *8-9.

The Court ultimately ordered the Plaintiff to produce a redacted hard copy of all relevant Facebook pages from 2011 to the present. The Plaintiff also had to provide defendants with the names and towns of residence of the individuals with whom the Plaintiff had relevant conversations. The Court defined the relevant Facebook pages as those containing statements about this case or the litigation, including discussions of her physical or mental health. The Plaintiff did not have to provide the names and location of minors without a Court order. Stallings, at *9-10.

Bow Tie Thoughts

I thought the requesting party did a good job with their request, because it sought what was relevant to the case, not a social media fishing expedition.

This case highlights the challenges lawyers have in not retaining experts to perform collections. While not directly stated, it seemed the Plaintiff’s attorney was trying to collect the Facebook profile through the download option without an expert and then conduct a manual review. I would encourage a law firm client to try a different approach.

There are products on the market that can be used to collect social media profiles. Some products can capture the data directly, search it, tag it, and produce it. X1 Social Discovery is one such product, but there are other product solutions as well. One of these tools could have made situations like this case much easier to litigation. I would encourage lawyers to look at their different options and find a partner who could assist them. No one should have to print entire social media profiles with the technology we have today.

Social Media Request for Production That Got It Right

Requesting social media relevant to a lawsuit should be done as standard operating procedure now. However, some attorney have a difficult time with narrowing their requests beyond, “Produce your Facebook profile.” Such fishing expeditions are summarily denied. See, Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012), Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013) and Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, at *6-7(M.D. Tenn. Mar. 20, 2013).

Here is a case where the requesting party got it right. The Court ordered the producing party to respond to the following request for production:

“[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.

Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).

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The Court stated that the request sought information about heath conditions that gave rise to the FMLA requests. Id.

In my opinion, the request was narrowly tailored for the issues that are the subject of the lawsuit. This is the sort of thought attorneys need to exercise when requesting social media. A party cannot simply ask for the opposing side’s password to Tumblr or Instagram. A request has to be for information relevant to the lawsuit, not a fishing trip across the adverse party’s Facebook Wall for whose status updates they “liked.”

 

Which Filter Do You Use on Instagram for Conspiracy?

We live in a world where people walk around with phones that have more computing power than the Lunar Lander. A recent case highlighted the importance of how data on these devices can enter a lawsuit.

In US v Davis, Instagram photos were used to help demonstrate a conspiracy between the Defendant and others to “lure a victim who posted jewelry for sale on Craigslist to Oakland for the purposes of robbing her at gunpoint.” United States v. Davis, 2014 U.S. Dist. LEXIS 24750, 6-8 (N.D. Cal. Feb. 24, 2014) (the case involved a bail study).

Photos from the Defendant’s smartphone include pictures “pistol, assault rifle, bundled and banded U.S. currency, U.S. currency displayed on a bed and a diamond ring.” Davis, at *7. Based on all the facts presented, the Court decided in favor of detention for the Defendant.

Bow Tie Thoughts

This case is an excellent example of how social media photos can enter a criminal case. The same could be said for civil litigation.

Every civil litigator should add questions about social media usage to their interrogatories, requests for production, and deposition. This is not to conduct a fishing expedition, but if there is a PI or workers comp fraud case, it is a good idea to find any Instagram photos posted to Tumblr of the injured party riding a mechanical bull.

The next step is ensuring the data is properly collected. Instagram is interesting, because photos can be saved to the phone, backed up on the computer, in the app on the phone, and on Instagram’s website. Each has different collection methodologies, so it is important to know what you want, such as just the photo, or the post on Instagram with related comments.

MySpace Photos as Impeachment Evidence

In a case involving claims of self-defense, the Trial Court excluded photos of the victim from MySpace holding a gun and wearing gang colors. Three prosecution witnesses claimed they had never seen the victim with a gun before. The Trial Court excluded the MySpace photos on the grounds the three photos were prejudicial.

The Court of Appeals reversed. The photos should have been admitted as impeachment evidence to contradict the testimony of the prosecution witnesses. United States v. Garcia, 2013 U.S. App. LEXIS 16880, 18-21 (9th Cir. Wash. Aug. 13, 2013).

Bow Tie Thoughts

The Rules of Evidence and whether social media photos can be used for impeachment is tricky. Attorneys quickly run into issues of relevance, prior bad acts, and unfair prejudice. A jury might find one way in a case simply because they do not like a photo.

Witness credibility and impeachment raise different issues. The Defendant has a right to impeach a witness’ statement.  And when it comes to impeachment, a picture is worth a thousand words.

HIPAA & Social Media in Discovery

Some cases are a two for one deal. This one covers HIPPA and social media.

No End-Run Around HIPAA

The Defendants sought a protective order to communicate directly with the Plaintiff’s health care providers without notice to the Plaintiff’s attorney and outside of the attorney’s presence. Ford v. United States, 2013 U.S. Dist. LEXIS 104030, at *2 (D. Md. July 25, 2013).

The Court said no.

The medical information could still be requested through normal discovery. As a prior Court explained, “there are ‘significant public policy reasons for keeping a plaintiff’s sensitive medical information restricted,’ which HIPAA protects by allowing disclosure of only “expressly authorized, limited, and specifically identified protected health information,” rather than unlimited communications.” Ford, at *2, citing Piehl v. Saheta, Civ. No. CCB-13-254, 2013 U.S. Dist. LEXIS 79401, (D.Md. June 5, 2013).

Social Media Discovery 

The Government sought the production of “any documents[,] postings, pictures, messages[,] or entries of any kind on social media within the covered period relating to [c]laims by Plaintiffs or their [e]xperts.” Ford, at *3.

The Court held the Government’s request was not narrowly tailored, thus overly broad and vague.

The Court explained, “[The Request] does not describe the categories of material sought; rather, it relies on Plaintiffs to determine what might be relevant.” Ford, at *5.

The Government’s request covered from September 2009 to present. It also defined claims as follows:

[A]ny factual allegation made by Plaintiff, Plaintiff’s husband[,] or any hired or treating expert in either their report or deposition. These include, but are not limited to: a lack of fluency; inability to initiate conversation; headaches; seizures; general malaise; pain; memory loss; loss of ability to work; loss of ability to continue education; inability to express thoughts or feelings; inability to name or label pictorial items; general inability to communicate; difficulty with semantic expression or usage; difficulty describing events in the past; inability to organize thoughts; inability to do more than one task [at] a time; depression; marital discord or relationships; inability to do activities outside of the house; inability to do activities with kids; inability to go places; inability to interact with friends or family.

Ford, at 3-4.

The Government had also requested “more pointed” discovery requests that would require the production of social media responsive to those requests, so any responsive social media would have to be produced pursuant to the valid requests. Ford, at *5.

Bow Tie Thoughts

Litigants do not have the right to unrestricted access to everything an adverse party ever said or thought. It is time for relevancy to become a trending hash tag in drafting requests for social media.

The Federal Rules of Civil Procedure and case law do not allow direct access to an opposing side’s hard drives as a matter of right. Moreover, even if you got everything (like every email message for three years) that is by no means a victory. It now has to be reviewed.

The same can be said for social media.

Judges have been a steady bulwark of restraint for social media requests. There are a few exceptions of entire profiles being produced, but I think those will be the exception and not the norm.

Requesting social media conceptually is not different than other ESI. The issue is knowing where to look and recognize the different types of social media that an opposing party can have responsive ESI.

Family Law & Social Media ESI

A New Jersey State Court determined the imputed income of a defendant in a child custody case to be $100,000 after reviewing photos from social media submitted by the Plaintiff. Fitzgerald v. Duff, 2013 N.J. Super. Unpub. LEXIS 1376 (App.Div. June 7, 2013). The Court of Appeals reversed the denial of a reconsideration motion.

The Defendant originally stated his income was only $21,000 according to his 2011 tax return. The Plaintiff (the child’s grandmother) offered social media photos of Defendant’s speed boat and a 2011 Chevrolet Camaro. Other social media photos included the Defendant’s “elaborate, tropical wedding, diamond engagement and wedding bands and him throwing $100 bills.” The Plaintiff also offered social media comments evidencing his successful tattoo business. Fitzgerald, at *4.

The Trial Court believed the Defendant made more many then he originally claimed. The Trial Court stated:

[B]ased on everything before me, I believe an imputation of income to the defendant is appropriate. He has a business with two locations. It’s . . . a large cash business and the [c]ourt believes that the records aren’t truly reflective of the income. The problem is that the [c]ourt has nothing other than what was stated last time, which is that there was evidence based on an internet page on MySpace that defendant makes in excess of $250,000 from the business of which he’s the sole owner.

I have the web page, I have photographs of his boat . . . . And certainly the boat, in and of itself, indicates a lifestyle beyond $15,000 per year. I think it’s appropriate . . . without more information, to impute income of at least [$]100,000 per year. . .

The Defendant challenged the finding, offering tax returns and other evidence, such as the age of the boat and that the wedding was paid for by family. The Trial Court rejected this evidence and maintained its original finding.

The Court of Appeals reversed and remanded back to the Trial Court. While the Court of Appeals did find there were factual issues on the Defendant’s income that had to be resolved that involved credibility, the Trial Court did not conduct the “fundamental fact finding” required under state law Rule 1:7-4. This rule requires that a “trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.” Fitzgerald, at *11, citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

Bow Tie Thoughts

A good friend recently asked me what percentage of lawsuits in the United States involve electronically stored information. I think at this point it is easier to identify the cases without some form of ESI.

The above was a child support case where social media photos challenged the amount of income earned by the Defendant. I believe every state court judge hearing cases in Family Court and the TRO calendar see ESI on a daily basis in the form of social media posts, photos and text messages.

Consider the following hypothetical:

Auto accident where liability and damages are disputed.

Pam Plaintiff and Danni Defendant both arrived at the 4 way stop sign at the intersection of Cardozo & Palsgraf at the same time.

Pam’s Smart car was to the right of Danni’s Escalade. 

Both parties claim the other signaled for the opposite driver to enter the intersection first. Both entered the intersection and collided. 

Danni’s Escalade had no visible damage.

Pam’s Smart car was a total wreck. 

Immediately after the accident, Pam took a photo of her car and posted the social media message: “Whoops, my bad.”

Danni Defendant had a “black box” installed by insurance company to encourage good driving habits on her Escalade. Danni has never received a discount on insurance rates for good driving.

This hypothetical personal injury case would have multiple electronically stored information that could be produced in discovery. How many attorneys would actually try to get the data from the “insurance black box”? Would the data be on the device in the car or available from the insurance carrier? How about the smartphone photo, that likely has GPS data? Or the Plaintiff’s party admission on social media?

Not every case will involve Terabytes of data, but it is a good bet there will be some form of ESI to consider, from a text message to a social media post. Attorneys will serve their clients well by considering the different types of electronic evidence that could be relevant in their lawsuits.

Still No Rummaging Through Social Media in Discovery

Courts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.