'Private' Facebook photos 'can be used' as evidence

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New York's highest court has reinstated a ruling that ordered a Manhattan woman seeking damages after being disabled in a horse riding accident to hand over "private" Facebook posts.

Noting “significant controversy” over what information on Facebook deserves privacy protection, Chief Judge Janet DiFiore of the Court of Appeals said it is appropriate to require disclosure of materials that are “reasonably calculated” to contain “material and necessary” evidence.

The 7-0 vote means that Kelly Forman must turn over to the defendant horse owner an array of photos taken before and after her injuries.

Forman said she became a recluse after suffering a spinal injury and brain damage, making it hard to read and write, in a June 2011 fall caused by Mark Henkin’s negligence in fitting her horse with a defective stirrup that broke.

To defend himself against Forman’s damages claims, Henkin sought access to her entire “private” Facebook account.

In February 2014, a trial judge ordered Forman to give Henkin pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records of her messages.

File: A man is silhouetted against a video screen with an Facebook logo as he poses with an Samsung S4 smartphone in this photo illustration August 14, 2013. /VCG Photo

But in December 2015, a state appeals court limited the disclosure to photos intended for trial, saying Henkin could not go on a “fishing expedition” for evidence.

DiFiore, however, reinstated the trial judge’s ruling, saying the appeals court erred in employing a “heightened threshold” for disclosing social media records that depended on what users chose to share publicly.

“Some materials on a Facebook account may fairly be characterized as private,” DiFiore wrote, “but even private materials may be subject to discovery if they are relevant.”

Henkin’s photo request “was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive,” she added.

Forman’s lawyer had no immediate comment. Henkin’s lawyer did not immediately respond to requests for comment.

The case is Forman v Henkin, New York State Court of Appeals, No. 1.

the Court of Appeals

Source(s): Reuters