In April 2011, I had an article titled, You May Not “Like” This Title: Everything Stored On Facebook Is Discoverable, published in the NYU Law Journal of Intellectual Property and Entertainment Law. The premise is that enjoying the openness of Facebook may come at an unexpected cost, especially for those who do not understand how the website’s content may be used as evidence in a lawsuit.
A real world example of how social media content can and will be used in lawsuits comes via a lawsuit concerning an Occupy Wall Street protester. In New York (where a lot of precedent appears to have been established concerning “social media law” to date), a judge recently ruled that no warrant was needed to subpoena a person’s Twitter account, since such information (tweets) are made publicly available by Twitter. The judge reasoned that “Twitter’s license to use the defendant’s tweets means that the tweets the defendant posted were not his.”
Websites’ Terms of Service (“TOS”) are frequently ignored by users, but that does not mean that the TOS fail to exist or are not valid and enforceable. Twitter’s TOS states, in relevant part,
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Tip: This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.
The result – an attempt to quash a subpoena seeking Twitter records will likely be futile, but of course, there are always exceptions to the rule.