Recent case reports show that the law is catching up with our use of electronic communications and social media. These rulings generally favor making all such communications available for use in litigation and limiting user privacy protections, and reveal that user expectations are different from the developing law.
Recent cases have held that:
- Text messages between city council members on their private phones during city council meetings are subject to disclosure under the Freedom of Information Act.
- E-mail communications between employees and their private lawyers on company owned devices are not protected by the attorney/client privilege.
- Social media postings can be admitted into evidence.
- Employers are entitled to all information transmitted on employer owned devices.
- Deleting matter from Facebook can constitute spoilation of evidence.
While this is just a sampling, recent decisions suggest that employers or owners of the equipment used to convey information may have greater rights to access than the users believe. Employers are cautioned to publish written policies and procedures that give notice to all employees of the employer’s ability to exercise those rights for the benefit of the employer.
These rulings also put employees on notice that privacy protections may not apply to electronic communications unless they own and pay for the means of communication. The sharing of information on social networks can be used against them in criminal and civil litigation, including to enhance sentencing or damages. Caution is always advisable since social media and electronic communications often cannot be totally erased.
Brooks, Tarulis & Tibble, LLC advises businesses on their rights, duties and obligations relative to business and social communications, and can represent individuals who are concerned about their privacy rights being threatened. If we can assist you in this regard, please contact me.