Legal Commentary

Facebook privacy fragile

By David Canton

For the London Free Press – October 25, 2010

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Postings to social network sites can be forced into evidence in legal proceedings

It seems like everybody is on Facebook or a similar social networking site. The prevalence of such websites has raised interesting questions relating to the level of privacy that should be afforded to users.

People often post intimate details concerning their lives and daily routines on Facebook. From a lawyer’s perspective, scattered among the minutia may lie pertinent information or evidence relating to legal proceedings the user is a party to.

Canada has some leading jurisprudence relating to this issue. A recent New York decision, Romano versus Steelcase, dealt with the defendant’s efforts to be granted access to the plaintiff’s current and historical Facebook and MySpace accounts.

The New York judge in Romano relied on the principles from the leading Ontario case on the matter, Leduc versus Roman from 2009. The judge in Romano echoed the reasoning in Leduc, demonstrating the court’s unwillingness to allow users a high level of protection.

In Leduc, the court held the moving party did not have the right to access the Facebook profile as a right. However, the court went on to state if the moving party can produce sufficient evidence there is information of relevance on the profile then the court can order the production of the evidence.

Based on the court’s finding it seems the level of privacy that will be afforded to Facebook profiles is considerably less than that afforded to other electronic communications, such as e-mails. The very purpose of social networking provides the reasoning behind this position.

The court noted in Leduc that to permit a party claiming damages for loss of enjoyment of life to hide behind self-set privacy controls on a website – the very purpose of which is to enable people to share information – risks depriving the opposing party of access to potentially pertinent information required for a fair trial.

Thus a high level of privacy will not attach to Facebook profiles because the very purpose of such profiles is to broadcast personal information to an audience or the public. If the moving party can demonstrate to the court that the profile might contain relevant evidence, the court can extinguish the user’s privacy rights and order the production of the evidence.

It should be noted if one’s profile is open to the public all information contained in it is fair game and no court order is required. A lawyer cannot however add a party as a friend in order to gain access to private information; this is an ethical breach.

The reasoning in Leduc has been adopted and followed in numerous cases in Ontario. It seems one should not assume information broadcast on their private profile is protected from the court’s gaze.

The lesson handed down by Leduc is we should be careful about what we post on social networking sites, as that information could end up being thrust under the microscope and laid bare in court.

Full post as published by eLegal Canton on October 25, 2010 (boomark / email).