The scholars, captains of industry and champions of justice who compose Law is Cool‘s readership will have long since scoured their online social networks for photos or other items tending to compromise their integrity — reports of “the dark side of social networking” are thick on the ground. But a recent court decision may renew paranoia that privacy is an artefact of the twentieth century, doomed to join its contemporaries (pagers, Chris Tucker, student activism, literacy, the Ark of the Covenant) in oblivion.
Just weeks after finding that Canadians have no expectation of privacy in their online identities, Ontario’s Superior Court of Justice has ruled that posts on Facebook and other online social networks may be discoverable against their makers, according to the Star’s Tracey Tyler.
Plaintiff John Leduc claims that injuries sustained in a car accident in 2004 have lessened his enjoyment of life. The court found that Leduc may be cross-examined on the contents of his Facebook account where such contents are relevant to his claim — despite the fact that security settings on his account restricted access to his profile to only his close friends.
If Leduc’s Facebook account contained evidence of him
- exerting himself,
- stopping to smell roses,
- “seizing the day” in any fashion, or
- otherwise engaged in merriment,
such evidence might undermine his claim. Pictures of him sitting on the roof of his car watching the sun set over a northern lake, or snowboarding through thick powder with the caption “Go for it!” beneath him, would be especially damning.
The decision overturns a Superior Court case management master’s ruling that forcing Leduc to produce the contents of his Facebook account amounted to a “fishing expedition”, since there was nothing — except Leduc’s opposition to disclosure — to suggest that any compromising photos in fact existed. Leduc’s profile consisted only of his name and picture.
A search of Facebook for accounts registered to “John Leduc” yielded 129 results — many of whom appeared to be enjoying themselves.
This represents a significant cost savings for the defendant, since to find photos contradicting a claim, one normally has to hire private detectives, or try to find bitter ex-partners or false friends to testify against the plaintiff.
Let’s assume for the sake of argument that there are pictures of merriment in Leduc’s Facebook account. How does the defendant plan to establish a timeline? Perhaps Leduc took those photos prior to his 2004 accident, and merely got around to scanning and uploading them much later, around 2008-9.
Pictures of a guy having fun aren’t good enough. They have to be pictures of him having fun *after* the accident, which is something Facebook can’t provide. So it is a bit of a useless fishing expedition.
Chris: Unless there’s a newspaper in the background :)
Maybe he’s brandishing the scars from his accident at the camera and smiling wide, as if to say, “I care not a whit about these meagre scratches.”
It is fishing! A accident that happened in 2004 and they are getting around to it now how come? Private eyes! They must have them or couldn’t get anywhere i guess so they need to go to this! Never less I wonder what his kids are going through! I know there are people out there but we haven’t heard the other side just a lawyer that can’t find anything and grasping at straws hmmmm go figure!Any how better days!
This has happened to me, and I never willingly offered any information about my name, home or address, etc. on any site on the internet, including facebook, myspace, etc. I am too old to know the stakes of such a concept!
But now my name and private information is being spread like wildfire services like twitter and the like with one goal: To defame my name and to out my personal and private information AMONG a group of individuals who’s only purpose for this is that I run a competing websight.
Welcome to the world of the net.
I don’t agree with the Ont. Superior Court’s decision. I agree with the master’s decision that the demand for discovery amounted to a fishing expedition. Discovery rules state that there must be cause to believe relevant evidence may be found in the discovery. Also, Chris Taylor is right, the logistics of proving ‘timeline’ are very difficult. Also, nobody has yet worked out the spillover implications of this case into discovery case law: if one doesn’t need cause to go on a facebook fishing expedition, what’s to stop one from going on other fishing epxeditions? I predict the decision will get stamped down by the Supremes at some not-too-distant point.
Marnie Tunay
Fakirs Canada
http://fakirscanada.spaces.live.com/default.aspx
P.S. to commentator Kathy SF: you don’t say if the website disseminating your private info is a commercial site. If it is, or if it’s run by a business, it should be subject to federal privacy laws (I’m assuming you’re Canadian.) Access the legislation and the commissioner’s site here:
http://www.priv.gc.ca/legislation/index_e.cfm
Also, if you look to the right of this thread, under ‘Constitutional Law & Civil Rights,’ there is a privacy law blog which may be helpful to you.
It was fishing and a waste of time. The lawyer got nothing out of it. Wasted the insurance money. But don’t forget to tell your clients they shouldn’t have any of the site ie. twitter, facebook or such because of the witch hunt a lawyer will do to get info. But in my case it was a slap to the face because there wasn’t anything there. Thanks.