I'm a little late to the party, but I heard the news this morning of a
recent Ontario case in which it was held that the plaintiff who was in a car accident and sued falleging that "his
enjoyment of life has been lessened and the accident caused limitations to his
personal life" was required to disclose all pages of his Facebook webpage. The case was written about at
Wise Law Blog and
Cavanaugh Williams.
The Court discusses the Facebook application:
When a person registers with
Facebook, he creates his own profile and privacy settings. Profile information
is displayed to people in the networks specified by the user in his privacy
settings – e.g. a user may choose to make his private profile information
available to others within his school, geographic area, employment network, or
to “friends” of “friends”. A user can set privacy options that limit access to
his profile only to those to whom he grants permission – the so-called “friends”
of the user.
The plaintiff set his
privacy options to limit access to his posted material to “friends”. The defence was, therefore, not able to view what was posted.
The state of the law was summarized as follows:
That a person’s
Facebook profile may
contain documents relevant to the issues in an action is beyond controversy.
Photographs of parties posted to their
Facebook profiles have been admitted as
evidence relevant to demonstrating a party’s ability to engage in sports and
other recreational activities where the plaintiff has put his enjoyment of life
or ability to work in issue:
Cikojevic v. Timm,
2008 BCSC 74 (CanLII), 2008 BCSC 74 (Master),
para. 47;
R. (C.M.) v. R. (O.D.),
2008 NBQB 253, paras. 54 and 61;
Kourtesis
v. Joris,
[2007] O.J. No. 2677 (Sup. Ct.), paras. 72 to 75;
Goodridge
(Litigation Guardian of) v. King,
161 A.C.W.S. (3d) 984 (Ont. Sup.Ct.),
para. 128. In one case the discovery of photographs of a party posted on a
MySpace webpage formed the basis for a request to produce additional
photographs not posted on the site:
Weber v. Dyck,
[2007] O.J. No. 2384
(Sup. Ct., Master).
But what about production of access-limited information?
The issue was addressed in the earlier case of
Murphy v. Perger,
[2007] O.J. No. 5511 (S.C.J.) where the Court ordered production of "copies of the
web pages posted on her private site, subject to the ability of plaintiff’s
counsel to make future submissions in the event that any of the photographs
personally embarrassed the plaintiff."
The Court in Leduc summarized the production obligation when dealing with social networking sites:
Although web-based social
networking sites such as Facebook and MySpace are recent phenomena, their
posted content constitutes “data and information in electronic form” producible
as “documents” under the Rules of Civil Procedure. Facebook’s Terms of
Use and Principles make it clear that a person’s postings fall under that
party’s control or power since the account user may post or remove content. If
a party to an action posts on Facebook content that “relates to any matter in
issue in an action”, that party must identify such content in his affidavit of
documents.
In terms of the obligation of counsel:
Given the pervasive use of Facebook and the large volume of photographs
typically posted on Facebook sites, it is now incumbent on a party’s counsel to
explain to the client, in appropriate cases, that documents posted on the
party’s Facebook profile may be relevant to allegations made in the pleadings. [Emphasis added]
The Court then followed the approach in
Murphy:
Where, in addition to a
publicly-accessible profile, a party maintains a private Facebook profile viewable
only by the party’s “friends”, I agree with Rady J. that it is reasonable to
infer from the presence of content on the party’s public profile that similar
content likely exists on the private profile. A court then can order the
production of relevant postings on the private profile. ....
Where, as in the present case, a
party maintains only a private Facebook profile and his public page posts
nothing other than information about the user’s identity, I also agree with
Rady J. that a court can infer from the social networking purpose of Facebook,
and the applications it offers to users such as the posting of photographs,
that users intend to take advantage of Facebook’s applications to make personal
information available to others. From the general evidence about Facebook
filed on this motion it is clear that Facebook is not used as a means by which
account holders carry on monologues with themselves; it is a device by which
users share with others information about who they are, what they like, what
they do, and where they go, in varying degrees of detail. Facebook profiles are
not designed to function as diaries; they enable users to construct personal
networks or communities of “friends” with whom they can share information about
themselves, and on which “friends” can post information about the user. [emphasis added]
In those circumstances, "A party who maintains a private,
or limited access,
Facebook profile stands in no different position than one
who sets up a publicly-available profile. Both are obliged to identify and
produce any postings that relate to any matter in issue in an action."
This is not a fishing expedition and the Rules of Civil procedure require that the party seeking production must present "some evidence that a party possesses a relevant document before a court can order
production." The Court gives some advice on how to go about this:
Most often such evidence will emerge from questions asked on a
party’s examination for discovery about the existence and content of the
person’s Facebook profile. Where the party’s answers reveal that his Facebook profile
contains content that may relate to issues in an action, production can be
ordered of the relevant content.
The general nature of the Facebook service is such that a court could infer, the "likely existence of relevant documents
on a limited-access
Facebook profile."
This is a very important case for those who practice in the area of employment law.
For example, an employee is terminated, sues and claims damages for wrongful dismissal. Mitigation is always an issue in these cases. If the former employee maintains a Facebook account or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.
There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.
