• 3D Legal Solutions

When can you be sued for what you post on social media?

Updated: Jul 4, 2020

Being sued for what you post on social media is a big concern. The Department of Justice noted a sharp increase in litigation involving social media since 2014. And the numbers are not slowing. In fact, the kinds of cases filed have even increased in variety. Libel is no longer the only thing one had to worry about.

People can sue you for what you post on Facebook UNLESS you’re careful.

Posts from social media are now used for cases for administrative sanction that can result to dismissal or expulsion from school, termination from employment, or even criminal prosecution for libel, sedition threats, and coercion.

Using online posts and pictures as evidence

Since the E-Commerce Act and the Rules on Electronic Evidence were implemented, anything a person sends or posts 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.

One thing to remember is that if a person files a complaint against you, he has to prove first that it was really you who posted the statement or picture. This is done by showing that the account name is one which you alone have been using. Just because a social media account uses your name and picture does not automatically give a presumption that it is your account. That still has to be proven.

If it is your account, but it wasn't you who posted the incriminating information, it is your turn to prove that it wasn't you who posted it. That is quite difficult because once an account is proven to be yours, everything posted there is presumed to be your own posts.

This is the reason you should be careful about your account details and passwords.

The right of privacy in the Facebook Era

If it was you who made the incriminating post, you still have another defense - the right to privacy.

Privacy advocates say that a person has a right of privacy online, even on social media. But the Supreme Court declares that this to be only partially true. 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 social media 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 users a platform to share with and interact with one another. How is there an expectation of privacy when the application is geared for social contact?

Expectations of privacy are governed by privacy settings.

Privacy Settings and their effect

Let us look at Facebook in this example. The terms of use and the Privacy Settings of the Facebook user determine his expectation of privacy. Facebook gives its users the privacy settings that regulate the accessibility of a user’s profile, his status postings, photos, etc.:

  1. Public – default setting; every Facebook user can see

  2. Friends of Friends – only the user’s Friends and their Friends can see

  3. Friends – only the Friends of the user can see

  4. Custom – visible only to particular friends of networks of the user

  5. 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. With these settings, the Supreme Court declared that Facebook users have an expectation of privacy if their post is limited only to a few persons. There is only a violation of the right to privacy if the post is shared outside the persons allowed to view it.

Note however, that the terms of use of Facebook sometimes allow a post to be shared outside one's network. This is why you have to study the terms and conditions of any social media app before posting anything incriminating - because it can be used against you if terms and conditions apply.

The online privacy of a post or picture is not protected automatically

The Supreme Court had already decided a case on the right to informational privacy on Facebook. The Supreme Court recognized that there is a right to privacy of online information, but it should be seen together with the purpose of of social media.

It declared that that there is no automatic protection of privacy of a post or online picture on social media networks. In fact, the presumption is that a person who places a photo on social media intends to forsake and renounce all privacy rights to it when no measures were used to control access to it.

In a case involving Facebook photos, 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. 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.

Rather, the user has to show that he was purposely limiting the viewership of the post to certain persons or groups in his network.

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 and cannot be used in any proceeding outside of those given access. If being broadcast to the public at large or to all the user’s friends en masse, then the post would NOT be considered private.

The definition of “a select few” has not yet been determined by the Supreme Court. It 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. However, we can only be certain of this when the Supreme Court decides on such an issue.

Originally published in June 22, 2018

by PM Dizon


About the author:

ATTY. PETER MICHAEL DIZON graduated from the University of the Philippines College of Law as a working student. He entered the Commission on Information and Communication Technology (CICT) and later served as a consultant for intellectual property law. He later joined one of the oldest and most experienced law offices in the Philippines, where he practiced litigation, immigration, and commercial law. He has a broad base of experience not only in the legal profession but also in the public and the private sector, particularly in the tech industry.