A high school student who posted a photo of herself in a bikini and shared it with her “friends and friends of friends” had no legitimate expectation of the photo remaining private, a Georgia federal court held in Chaney v. Fayette County Public School District, 2013 WL 5486829, at *4 (September 30, 2013 N.D. Ga.).
The photograph at issue depicted the student clad in a two-piece bikini, posing with a cut-out of the rapper Snoop Dogg. The student posted the photo to her Facebook page, which permitted access to “friends” and “friends of friends” under a privacy setting described as “semi-private.” An administrator at the student’s high school found the photo on Facebook and included it in a Power Point, which he presented to the student body, about the permanency of social media posts. The student sued her high school and the administrator for invading her privacy in violation of her federal rights.
The Northern District of Georgia rejected the student’s claims. The court held that the student lacked a “legitimate expectation of privacy” in the photo because of the “semi-private” privacy setting she selected:
“[P]lantiff fails to acknowledge the lack of privacy afforded by her selected Facebook setting. While [plaintiff] may select her Facebook friends, she cannot select her Facebook friends of friends. By intentionally selecting the broadest privacy setting available to her at the time, [plaintiff] made her page available to potentially hundreds of, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends). … [Plaintiff not only voluntarily turned over the picture to her Facebook friends, but she also chose to share the picture with an additional audience of unknown size, likely comprised of people [Plaintiff] did not know, subject to continuous exposition without [Plaintiff’s] approval.”2013 WL 5486829, at 4*.
While the court emphasized “the semi-private” nature of the student’s selected Facebook setting, its opinion suggests that even “private” Facebook postings will not be afforded constitutional protection. The court cited with approval a 2012 opinion in which a New York court held a criminal defendant “surrendered his expectation of privacy when he posted to his Facebook profile and shared those posts with his friends” because the defendant had “no justifiable expectations that his friends would keep his profile private.” 2013 WL 5486829, at 4*(citing United States v. Meregildo, 883 F. Supp. 2d 523,526 (S.D.N.Y. 2012).
The lesson: ANYTHING a user posts on Facebook may be considered fair game, even if it’s ONLY shared with those in a user’s private network. That means Facebook users must not only be mindful of WHAT they post, but also with WHOM they share it. For example, in the New York case—Meregildo—the government gained access to the criminal defendant’s Facebook profile through one of the defendant’s Facebook friends. Facebook posts are indeed permanent, they’re likely not private, and they can come back to bite in litigation.