Trying to keep up with the fast-moving world of social media, the Kentucky Court of Appeals has ruled that “tagged” or captioned photographs posted on Facebook may be admitted as evidence. The ruling in the case has implications for employers. In LaLonde v. LaLonde, the appellant-wife objected to the trial court’s admitting into evidence photographs taken from Facebook that identified her by “tagging.” The photographs appeared to show her consuming alcohol in contradiction to the advice of her mental health providers—a key issue in the custody dispute. 
The wife argued the photographs should not be admitted because Facebook allows anyone to post pictures and then “tag” or identify people in the pictures and she never gave permission for the photographs to be published in this manner on. Rejecting this argument, the appellate court held, “There is nothing in the law that requires permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires her permission when she was ‘tagged’ or identified as a person in those pictures.” The Court acknowledged that modern digital photography techniques may allow for alteration of the photograph, but pointed out that the wife never suggested such techniques were used, instead acknowledging the pictures were accurate.
The potential implications of this holding are numerous. As we have previously discussed, employers may be able to use social media (which arguably includes tagged pictures) to fight emotional distress damages. Similarly, as we described here, Facebook content has been utilized by employers in disciplinary decisions. Our Social Media White Paper provides a helpful discussion of this and other issues employers should think about when it comes to social media.