Facebook has a message for any of its users considering a lawsuit against the company: tread lightly, because Facebook never forgets.  Since a user’s profile history is never truly erased from Facebook’s records, that history can easily be brought to light during the discovery phase of a suit.  As Facebook’s lawyers have discovered, the prospect of an exhaustive, public review of every wall post and private message ever sent by a user can serve as a valuable deterrent to suit.

Angel Fraley, a Seattle seamstress, learned this the hard way.  Fraley was the plaintiff representative in a class-action suit against Facebook over its “Sponsored Stories” advertising practice.  Fraley and the rest of the class have argued that the use of their likenesses in these paid advertisements without their consent violates their right to publicity under California law.

Fraley, however, has recently decided to drop from the suit.  Why?  Because of apparently embarrassing Facebook activity that the company’s lawyers unearthed from her profile history during discovery.  Fraley explained, “I did not expect that every single post I had ever made on Facebook would potentially be rehashed in interrogatory responses and deposition . . . . Answering questions regarding my private posts or my decisions to click ‘Like’ buttons on certain pages or posts would subject me to embarrassment and invade my privacy.”  Fraley, who describes her political views as “outside the mainstream,” says that she was “unwilling to defend [her] political views and lifestyle” in a suit against Facebook.

Incidentally, Fraley isn’t the first plaintiff to charge Facebook with attempting to derail a suit through intimidation.  Paul Ceglia, who made a dubious claim of owning a large share of Facebook, said that he was forced to move to Ireland to escape harassment and surveillance by Facebook investigators.

While the practice of dredging through a plaintiff’s Facebook history for potential landmines may seem invasive of that user’s privacy, one can be sure that the company’s lawyers will continue doing so as long as it remains effective and legal.

– Henson Millsap

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3 Responses to Facebook’s Most Valuable Lawsuit Deterrent: Public Embarrassment

  1. Stephen Josey says:

    It’s amazing to see how much expectations about privacy have changed over the past 30 years. The fact that companies like Facebook and Google are able to collect the amount of information that they do is quite scary. I wonder if these companies will eventually be able to immunize themselves from litigation by threatening the release of personal information of potential litigants. I’m surprised that they are able to release this information on such a whim – logic tells me that this should potentially be illegal.

  2. Tim Van Hal says:

    This is a serious problem and very similar to the one currently being faced in the geolocation data debate and bevavioral profiling generally. It is very difficult to challenge companies that have private information against a plaintiff, his counsel, or even the judge. A suit never reaches the merits due to the threat to privacy. It seems that we are in dire need of a solution in order to protect consumers. Consumers have not realized the malicious potential of modern social networking and therefore have not acted to protect themselves. When they do, the effects could be disastrous. It would be far better if Congress were to act to create a bill requiring Consumers be notified of exactly what is going to be done with their data by the service company and how they can control that. Informed consent is paramount, and the user must be enabled to delete information at the granular level. Failure of a company to comply should give rise to a private enforcement action. Facebook, until now, has remained an information vault which is opened only to the detriment of Facebook’s challengers. This is a dangerous trend.

  3. Swathi Padmanabhan says:

    I think regulations preventing Facebook from using its members online content in court should be illegal. Given the privacy controls that allow users to limit the accessibility of their profiles, an argument could be made that an individual’s Facebook profile is a private forum. Correct me if I’m wrong, but private conversations between friends face-to-face is not discoverable unless it is directly relevant to the issue at bar. Fraley’s private conversations don’t at first blush appear to be relevant to her suit. Therefore, that Facebook can use the information to humiliate her in court seems suspect. Regulating this to protect the dignity of the average citizen is therefore important.