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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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