N.J. Civil Case Testing Limits of MySpace, Facebook Privacy

Q Boyer
ELIZABETH, N.J. — A lawsuit brought by a teenager in New Jersey is testing the extent to which users of social networking sites like MySpace and Facebook can expect their private messages to remain private, should those users ever end up as a litigant in a civil lawsuit.

The case, T.V. vs. Union Township Board of Education, involves a teenage plaintiff identified only by the initials T.V. who was sexually assaulted by a fellow student in 2003. Following the conviction of the other student on sexual assault charges, T.V. filed a lawsuit alleging that her school’s failure to supervise its students allowed the attack to occur, contributing to emotional distress that was documented by her psychiatrists.

After seeing the public portion of the plaintiff’s MySpace and Facebook profiles, George Campion, attorney for the school board, sought access to the private messages T.V. had posted on the social networking sites, as well.

Campion needed a commission from the judge in order to depose representatives of MySpace and Facebook, and to obtain the text of the plaintiff’s messages. Arguing that there is reason to believe that the private messages will aid defense experts to determine whether T.V. really suffered from emotional distress, and possibly raise credibility issues, Campion asked Union County Superior Court Judge Kathryn Brock for an order allowing the defense to review the private messages.

Campion contended that the plaintiff waived her privacy rights regarding things that might shed light on her mental state by filing an emotional distress claim. Campion also reasoned that asking for access to private messages from social networking sites is essentially the same as seeking access to email messages — a request routinely granted in civil cases.

The private messages, Campion argued, constitute “a way to shed light on the plaintiff’s credibility by finding out what, she wrote on social networking sites in unguarded moments.”

The lawyer for the plaintiff, Adam Slate, countered that Campion’s discovery request should be rejected, in part because if the court finds that private postings on social network sites are discoverable in emotional distress cases, the defense in just about any case involving a plaintiff with a MySpace profile would file for discovery of such material.

Slate argued that the private messages are akin to the texts of telephone conversations, and are governed by the New Jersey Wiretapping and Electronic Surveillance Control Act, which restricts wiretapping to law enforcement agencies.

Slate also reasoned that extra care must be taken in a case that involves a minor.

“In our society, minors now communicate by computer far more often than they do by telephone, and the minor plaintiff has relied on the ability to communicate confidentially with her friends, via the Internet, just as she would have by telephone prior to the advent of the Internet,” Slater stated in a brief.

In a hearing last week, Brock came down on the side of the plaintiff — for now.

Instead of ruling as to whether privacy rights supersede a discovery request like Campion’s, Brock held that the defense had not established that it needed the private messages from the websites in order to defend the school board.

Without trying other avenues first, Brock said, “it seems like a big step” to allow Campion access to the private messages. The judge declined Campion the commission, and issued a protective order against the release of the private messages.

Brock did grant Campion the right to renew his request for the messages, if he can show a need for them, and demonstrate relevance.

Attorney Rob Apgood told XBIZ he agreed with Campion’s argument that the messages were similar to email messages, and ought to be made available to the defense.

“Courts have tacitly acknowledged that litigants are entitled to these sorts of communications,” Apgood said. “In my view, these are ‘stored communications,’ just like email.”

Given that the messages were written communications, Apgood said, he’s not persuaded by the argument that the messages should be treated like phone calls.

“Written is written,” Apgood said, “whether it is ink on paper, or digitally rendered writing on a website.”

Apgood said he frequently cautions his adult industry clients to be very careful what they write in email and instant message communications, due to the way those forms of communication are handled under the law.

“ICQ and IM chat logs are also ‘stored communications’ — therefore, they are also subject to discovery,” Apgood said.