for the rampant facebooker’s.
Facebook as Evidence
In today’s modern world of technology which includes Internet-based social networking and the accompanying rise in the sharing of personal information, a recent Ontario Court of Appeal decision, Leduc v. Roman (“Leducâ€), has concluded that such personal information is a legitimate form of documentary evidence for civil litigation cases.
Social networking websites, such as Facebook, provides the opportunity for millions of internet users to connect, interact and, at times, share personal information with other online users ultimately creating “online communities†of individuals that share common interests. The sharing of personal information is done via postings on community member “walls†(a space on users’ profile pages that allows community members to post messages for the user or other members to view), “photos†and “videos†(where users can upload albums, photos and videos); and “status†which allows users to inform community members of their whereabouts and actions.
Leduc was involved in a motor vehicle accident wherein he alleged that as a result of Roman’s negligent driving his enjoyment of life had lessoned, in particular his personal life.
Leduc maintained a Facebook account but with restricted access permitting only those who were personally authorized by him (Facebook “friendsâ€) to view his personal information. Those who did not receive Leduc’s authorization were not categorized as a Facebook “friend†and subsequently only able to view information commonly available for all to see such as his name, photo and city of residence. Despite not having “friend†status, Roman’s counsel requested that Leduc produce contents of his Facebook profile pages to ascertain whether or not his claim was genuine. Leduc refused to produce the Facebook pages on his private setting. As a result Roman sought an order from the court to obtain access to the information on the private setting.
The Court of Appeal granted Roman the opportunity to cross examine Leduc to determine if any information on his private setting would be relevant to the litigation and if so, to produce it. In making this order the court stated, “to permit a party claiming very substantial changes damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.â€
The Court of Appeal appears to have been persuaded by the fact that Facebook, as a social networking site, is a means by which one can reveal one’s personal life to others, and for that reason is likely to contain relevant information about how one leads their life. Accordingly, despite privacy controls and settings, the contents of a social networking website can be disclosed to a third party but only if the contents are relevant. One cannot go on a fishing-expedition of all profile materials that do not relate to the matter or are overly broad.
This case illustrates that the development of social networking sites opens the door to new sources of evidence; evidence which litigants may now obtain and rely on as potentially key information that would have only been previously captured through surveillance. The information of course has to be relevant.
For employers, information contained on an employee’s profile may be useful in cases involving disability management whereby an employer may have the ability to obtain valuable information regarding the employee’s daily physical activities, or in cases involving wrongful dismissal claims whereby an employer may be able to obtain information regarding the employee’s efforts, or lack thereof, to find alternate employment.
