In a recent decision that reflects a trend in Quebec courts, the Commission des lésions professionnelles (CLP) has held that posts from the social networking site Facebook are admissible in evidence, based in part on its finding that all Facebook content is in the public domain.
The case before the tribunal concerned a worker who filed a claim with the Commission de la santé et de la sécurité du travail (CSST) alleging workplace harassment. In support of her allegations, she mentioned a series of incidents, the most recent of which occurred when a co-worker "friended" her on Facebook. When she accepted the invitation, she was able to read comments made about her by other co-workers who were friends of her friend. Those comments reinforced her belief that she had been harassed and she initially printed six pages of posts and later printed another two pages and filed them before the CSST. When the CSST and its administrative review board both rejected the worker's claim, she appealed to the CLP.
At the hearing on her appeal, the worker filed only some of the Facebook pages she had printed. Although the employer objected to their production as evidence, the CLP allowed their production, pending filing of the parties' arguments as to their admissibility. The employer argued essentially that the posts filed were incomplete and therefore there was a possibility they might have been altered and that they constituted hearsay. In the employer's view, filing them would also violate the Charter of human rights and freedoms, as the posts could be likened to a private conversation.
The argument that the posts were not complete
The CLP considered that the mere fact that the complainant did not file all the posts she had printed did not constitute sufficient grounds to challenge their integrity as evidence. On the presumption that the posts were akin to a material thing as that term is used in the Civil Code of Québec (CCQ), the CLP concluded that their authenticity did not need to be established. According to Article 2855 CCQ, where a material thing is a technology-based document, its authenticity does not need to be established, except for a document in a medium or based on technology that does not allow its integrity to be confirmed or denied, pursuant to s. 5 of the Act to establish a legal framework for information technology (LFIT). Since the exception did not apply, the CLP considered that, under s. 7 of the LFIT, the employer had the burden of proving that the integrity of the document had been affected, which it failed to do.
The argument that, as hearsay, the posts were inadmissible
The CLP refused to find that the posts were inadmissible because they constituted hearsay. In doing so, the tribunal refused to discuss further its reasons for accepting their integrity, expressing the opinion that, even if they were considered to be hearsay, they were nevertheless admissible because they provided sufficient guarantees of credibility to allow the employer to adduce rebuttal evidence. The tribunal remarked that the employer knew about the evidence beforehand and was given four extra days of hearings to respond to it and that since the persons concerned were named in the document, the employer could have summoned them to testify.
The alleged infringement of the Charter of human rights and freedoms
Distinguishing between the personal character of a post and its public or private nature, the CLP found that the content of a Facebook profile is not private. In justifying its position, the CLP discussed the purpose of Facebook and how it works. The tribunal remarked that while Facebook allows members to choose their friends, they cannot easily control access to their profile by friends of their friends. Since a person's posts can be read by numerous Facebook users, the CLP expressed the opinion that there can be no expectation of privacy on Facebook. Moreover, the tribunal remarked that the worker's access to the content on the profiles of the third persons involved was perfectly legitimate. Therefore, in the CLP's view, there was no infringement of privacy.
The CLP held that the evidence produced by the worker should not be declared inadmissible, as the employer failed to prove by a preponderance of the evidence that the document's integrity had been affected. Moreover, the tribunal concluded that it would be able to fully assess the relevance and evidentiary value of the document at the hearing on the merits.
This decision highlights how important it is for employers to develop guidance for employees using social media, in the form of rules and policies, and, especially, to make employees aware of the risks of discussing work related issues on social media.
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