Social media & Privacy: When can you be sued for what you post on Facebook?

The Department of Justice noted a sharp increase in litigation involving social media since 2014. Facebook, Twitter, and Instagram are part of our lives. They have become primary sources of information for many of us and are part of the ways we interact with the world. One of the biggest concerns now is preventing or prosecuting social media litigation. Privacy settings play a key role.

YES, people can sue you for what you post on Facebook UNLESS you’re careful.

I’m not just referring to libel here. The case could be dismissal or expulsion from school, termination from work, criminal prosecution, or administrative sanction for whatever reason, simply because a person published something online.

Online posts and pictures may be used as evidence

Since the E-Commerce Act and the Rules on Electronic Evidence were implemented, anything a person sends online may be used as evidence. It is simply a matter of identifying the person and finding the person’s address. Once it is shown that the post or picture was sent by a certain person, then it may be used in evidence against that person to determine his guilt.

The right of privacy in the Facebook Era

Privacy advocates say that a person has a right of privacy online, even on Facebook. But the Supreme Court said that this is only partially true. This has led to a rise in social media litigation.

The Supreme Court recognized that a person has a right to privacy online. His posts or pictures are protected and cannot be used as evidence against him in any proceeding without his permission. But this right is limited by the expectations of privacy in the application or website he is using.

To what extent is the right to privacy protected in online social networks? The very purpose of these networks is to socialize and to share information about a person, some of which would have otherwise remained personal or private. Social media networks give its users a platform to share with and interact with one another. How is there an expectation of privacy when the application itself is geared for social contact?

Privacy Settings and their effect

In Facebook, the terms of use and the Privacy Settings of the user determine one’s expectation of privacy. Facebook gives its users the privacy settings that regulate the accessibility of a user’s profile, his status postings, photos, etc.:

(a) Public – default setting; every Facebook user can see
(b) Friends of Friends – only the user’s Friends and their Friends can see
(c) Friends – only the Friends of the user can see
(d) Custom – visible only to particular friends of networks of the user
(e) Only Me – viewed solely by the user

Obviously, as the privacy settings become more limiting, fewer Facebook users could view the person’s profile or entries. Without these settings, there would be no reasonable expectation of privacy. But since these settings are present, the Supreme Court declared that Facebook users have an expectation of privacy if their post is limited only to a few persons, a a limited group of persons.

Is privacy protected automatically?

No. The Supreme Court said that there is no automatic protection of privacy.

The Supreme Court noted that a person who places a photo on the Internet intends to forsake and renounce all privacy rights to it particularly when no measures were used to control access to it.

The Supreme Court took into account that the “Public” setting is the default setting of Facebook, hence, the presumption is that any post made there is for public consumption. The user should prove that the setting is limited only to certain persons.

If the user cannot prove that the post or picture is not limited only to certain persons, then the post cannot be considered private and can be used as evidence in any proceeding. On the other hand, if the post or picture is proven as private, then it cannot be used as evidence in any proceeding. In fact, the user can even file a cybercrime case against his accuser for using or gaining access without permission!

Will limiting the post to “Friends Only” make it private?

Merely limiting the post or picture to “Friends Only” will NOT make it private.

The Supreme Court stated that some profile accounts have hundreds of friends, so it would be unrealistic to think that exposing your posts to that number of persons would still keep it private. Rather, the user has to show that he was purposely limiting the viewership of the post to certain persons or groups in his network. In fact, those friends could even share the post. Some may even take a screenshot and pass it on. The key is to make it clear that the post is meant only for a few persons.

Is there a definition for “select few”?

Justice Presbiterio Velasco declared in a landmark case that if a Facebook post were limited to the original uploader, through the “Me Only” privacy setting, or screened to limit access to “a select few,” through the “Custom” setting, then it demonstrated an intention to limit access to the particular post, instead of being broadcasted to the public at large or all the user’s friends en masse. In such cases the post would have been considered private and could not be used in any proceeding.

“A select few” could mean the entire membership of a secret group in Facebook, or one organized for exclusivity, because in such case, even if there would be several persons who are part of the group, the expectation is that the posts made there would not be shared privately. This is a personal opinion though, and we can only be certain of this when the Supreme Court decides on such an issue.


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