Social Networking Profiles May Not Be Private

For all of those who warn their teenagers to be careful and prudent about the content that they post on their Facebook sites, a recent decision of an Ontario Superior Court judge underscored that advice in the context of civil litigation. The judge ordered a plaintiff in a personal injury lawsuit to be cross-examined on the nature of the content that he had posted on his Facebook profile, even though he had marked his profile as "private" and had restricted access to his Facebook pages only to his Facebook "friends".

In the case, the plaintiff alleged that he was injured in a car accident as a result of the defendant's negligent driving. He claimed damages as a result of what he alleged to be his loss of enjoyment of life and claimed that the accident had caused limitations to his personal life.

When the plaintiff was examined for discovery in the action, the defendant's lawyer did not ask him any questions about whether he maintained an active Facebook profile. Several months later, during the course of a psychiatric evaluation by the defendant's doctors, the plaintiff disclosed that he had "a lot" of friends on Facebook. However, his publicly available Facebook profile showed only his name and picture. He had restricted access to his site only to his Facebook friends. As a result, the defence made a motion to the court for an order requiring the plaintiff to preserve and produce all information on his Facebook profile.

The motion was made before a Master of the Ontario court who held that, while the Facebook profile pages were "documents" since they contained data and information that could be produced by him, the defence had produced no evidence that any information on the Facebook profile was relevant to the issues in the action. The Master held that the request for production of the Facebook productions was clearly a fishing expedition. The Master concluded that it would be speculative to infer from the various applications available to a Facebook user what content might exist on a specific Facebook site. He was not prepared to conclude that one head shot of the plaintiff was indicative of what else might be on his site.

The defendant appealed the decision to a judge of the Superior Court of Justice. The judge hearing the appeal stated, correctly, that it is now beyond any controversy that relevant documents, including photographs that are posted on a Facebook profile are producible in the course of litigation. In fact, a previous case in Ontario held that one can infer from the nature of the Facebook service, the likely existence of photographs on a party's private profile.

Ontario's Rules of Civil Procedure impose an obligation on a party's lawyer to certify that he has explained to his or her client what kinds of documents are likely to be relevant to the allegations in the lawsuit and therefore must be produced to the other side. Given the pervasive use of Facebook and other social networking sites and the large volume of photographs typically posted on such sites, the courts have held that it is now incumbent on the lawyer to explain to the client in appropriate cases that documents posted on the party's personal profile may be relevant to allegations made in the lawsuit.

If, in addition to a publicly-accessible profile, a party maintains a private profile viewable only by the party's friends, Ontario courts have held 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 can then order the production of relevant postings on the private profile.

In this case, the court went even further. It held that where a party maintains only a private Facebook profile, and his public page posts nothing other than information about his identity, the court can still infer from the social networking purpose of Facebook and the applications it offers to users such as the posting of photographs, that the users intend to take advantage of Facebook's applications and make their personal information available to others. Accordingly, the court disagreed with the Master that the defendant's request was a fishing expedition. It held that the plaintiff exercised control over his social networking information site to which he allowed access to designated friends and therefore it was reasonable to infer that his Facebook site likely contained content relevant to the issue of how he was able to lead his life since the car accident. Accordingly, such content was relevant to his claim for damages.

Even though the defence did not ask the plaintiff any questions about his Facebook profile on his examination for discovery, the court held that fairness dictates that a party who discovers a Facebook profile should have an opportunity to test whether or not the profile contains content relevant to the issues in the lawsuit. The court held that the defendant should be permitted to cross-examine the plaintiff on a supplementary affidavit of documents that the plaintiff had served in order to learn whether any of the content on his Facebook profile was relevant.

Regards,

Blair