Facebook Privacy Settings May Keep Out Nosy Profile “Creepers” but not Modern Litigants

It was only a matter of time before Canadian jurisprudence began to develop in response to privacy issues and the admissibility of documents associated with enormously popular social networking sites such as Facebook and MSN’s MySpace. As a result of a number of District and Superior Court decisions it is now uncontroversial that these profile pages may contain relevant documents that can be admitted as evidence; typically these cases involve a plaintiff claiming a deprivation of life enjoyment or working capability and germane photographs demonstrating a party’s ability to engage in sports and other recreational activities.

When it comes to court orders for the production of documents attached to privately listed Facebook profiles and pages the law is not quite settled. Recently, however, the Superior Court of Ontario allowed an appeal overturning a previous decision not to order a plaintiff to adduce documents that are private. This signals the willingness of courts to place full discovery of documents and defendants’ need to assess the case to be met over online privacy rights.

In the 2009 case of Leduc v. Roman, the Plaintiff was injured in a car accident due to the defendant’s negligence. At issue was the Plaintiff’s inability to engage in outdoor sporting activities that he enjoyed before the accident. To controvert the psychological evidence the Defendant asked for all documents on privately listed Facebook pages of the Plaintiff. Master Dash refused to order the production of the documents.

Weighing heavily in the master’s reasoning was the fact that the Plaintiff’s public page had only one casual head shot not indicative of what may be on the other pages. Another aspect was that the Defendant had an opportunity to ask at discovery whether the Plaintiff had photos – either a hard album or electronically—that are demonstrative of his lifestyle but there was no evidence such questions were asked.

On review of the master’s decision, the court found that the master erred by exercising his own discretion and not applying the principle in Murphy v. Preger that a court can infer, from the nature of the Facebook service, the likely existence of relevant documents on a limited-access Facebook profile.

On the point of discovery, it was noted that although the issue of Facebook documents came to life only after the discovery period ended, once the Plaintiff submitted supplementary affidavit evidence the Defendant had the right to cross-examine to discern what kind of evidence existed. The rationale influencing the court’s decisions was that “to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website… risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

What this means?

Courts are not going to allow litigants to hide behind privately listed pages or profiles. So if you have any self-incriminating photos or embarrassing pictures from that drunken stupor up in your buddy’s cottage during the May 24 long weekend, don’t be surprised if they end up in a courtroom.

This goes for your friends’ profiles, too. As it stands now, it is possible that if a court had reason to believe there are relevant documents on a friend’s page by, for example, a paired picture including yourself on a home profile mugshot, then production of documents on that account may very well be ordered; again, notwithstanding the exclusivity of the pages.

Perhaps the courts will be the institution to quell this generation’s torrid love-affair with the pre-event, main attraction and post-event photo shoot.