KMK Law Complex Litigation Blog

On May 26^th, the U.S. District Court for the Central District of California ruled that, under the Stored Communications Act of 1986, postings to a user’s Facebook “wall” (and, similarly, to the “comments” page on MySpace – although nobody actually uses MySpace anymore) are considered private so long as the user has his privacy settings set such that only “friends” can see his wall postings. Accordingly, such private communications are not subject to discovery in a civil proceeding. The case is Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010). It makes no difference whether the Facebook user is wildly popular and has thousands of “friends.” According to the court, a determination of whether someone has deemed his communications to be private cannot be based on the number of “friends” on one’s account, as this would result in arbitrary line-drawing.

This is a pretty significant decision in the emerging area of Social Media Law, as it is the first time any court has examined the question whether the privacy settings of popular social media sites like Facebook actually have any legal implication. If the rest of the country chooses to follow the trail blazed by the Federal Court in Los Angeles (as is often the case), the ability for litigants to use social media sites as a treasure trove of discoverable information (the “hot” thing to do these days if you’re a litigator) may be significantly curtailed. All one needs to do, according to the California court, is to properly set one’s privacy settings so that one’s Facebook page is not open to the general public.

I’m double-checking my privacy settings right now…