The “right to privacy” which we often take for granted in this country is not absolute. It can only be said to exist where the facts and circumstances permit a person to hold a “reasonable expectation” that their actions, statements, etc., will remain private. The test used by the courts was articulated back in 1967 by Justice Harlan in Katz v. United States as follows:   First, there must be “an actual (subjective) expectation of privacy and, second that the expectation be one that society is prepared to recognize as reasonable.” So, what happens when we post information to social media sites, such as Facebook? Can we be said to have a “reasonable” expectation to privacy in information which has been posted to social media sites? These sites have “privacy” settings. Is that enough? Despite what you may think, some recent court decisions seem to say that we DO NOT!

In Moreno v. Hanford Sentinel, Inc., the California Court of Appeals determined that persons who voluntarily posted their otherwise private writings had no reasonable expectation to continued privacy once they posted them on MySpace. A similar determination was reached by the Ohio Court of Appeals in Dexter v. Dexter.

In US v. Lifshitz, the United States Court of Appeals for the 2nd Circuit addressed the question of whether one has a reasonable expectation of privacy in internet postings or e-mails, and ruled as follows:

Users would logically lack a legitimate expectation of privacy in materials intended for publication or public posting. They would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer whose expectation of privacy ordinarily terminates upon delivery of the letter

Using these decisions by analogy, a recent decision out of New York, Romano v. Steelcase, Inc., determined that by posting information to Facebook or MySpace, a person has waived, at least to some extent, their right to privacy over that information. In reaching this decision, the court noted that the sites themselves make clear that neither the privacy nor security of posted information could be guaranteed. Further, the court stated that:

when Plaintiff created her Facebook and MySapce 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.

In the wake of these decisions, anyone using social media sites, like Facebook, MySpace, LinkedIn, or the like, should bear in mind that by posting their thoughts, photos or other information, they may well be waiving any and all expectation to privacy in that information. Remember, in the internet age, “Big Brother” may always be watching!