Canada: The Courts’ Approach To The Preservation Of Electronic Data: A Warning For Facebook Users

Last Updated: December 28 2011
Article by Miranda Spence

In recent years, the Internet and social networking sites have made the manipulation and dissemination of personal information faster and easier than ever before. The popularity of social networking websites has meant that individuals are now making intimate details of their private lives available publicly, with little regard for the consequences. Case law in Ontario and New Brunswick demonstrates that the courts have a wide authority to order the preservation and production of information posted on Internet websites, even where that information is not publicly available.

Leduc v. Roman1

This case arose from a car accident that took place in Lindsay, Ontario in 2004. The plaintiff claimed that, as a result of the defendant's negligent driving, his enjoyment of life had been lessened, and the accident caused limitations to his personal life.

The defendant sought the preservation and production of photographs and other information posted to the plaintiff's Facebook profile. The basis for the request was that this information could constitute evidence of the plaintiff's physical and social activities, enjoyment of life and psychological well-being – issues which were central to the litigation. This information was posted to the plaintiff's private Facebook profile, which could only be viewed by the plaintiff's "friends" (i.e. individuals to whom the plaintiff had specifically granted access).

The plaintiff was ordered to produce relevant information from his Facebook profile. The judge also held that, on cross-examination, the plaintiff was required to answer general questions about the nature of the content he posted to his Facebook profile.

In making his ruling, Justice Brown made some general comments about the requirement to produce information posted to an individual's Facebook profile. He found that Facebook's "social networking purpose" was to allow individuals to make personal information available to others or, in the language of Facebook, to "share." Based on this purpose, it was reasonable for the court to infer that a plaintiff's Facebook profile contained relevant information concerning the effect of the plaintiff's injuries on his day-today life.

Justice Brown also noted that "[a] party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile."2 Based on this analysis, Facebook's "privacy settings," which allow individual users to choose the amount of information they wish to make publicly available, have no impact on the court's ability to order the production of that information. Any relevant content posted on any Facebook profile must be produced.

Sparks v. Dubé3

More recently, the New Brunswick Court of Queen's Bench considered the manner in which production of content on a Facebook profile must be carried out. In this action for damages arising from injuries sustained in a car accident, the defendant alleged that the plaintiff was more physically active than she claimed to be. In support of this allegation, the defendant pointed to photographs from the publicly-available portion of the plaintiff's Facebook profile, which showed her engaged in strenuous activities such as "zip-lining." The defendant sought the preservation of and access to the private portion of the plaintiff's Facebook profile, as well as any other social networking profile she may maintain.

Based on the analysis in Leduc v. Roman, supra, Justice Ferguson held that content posted to the private portion of the plaintiff's Facebook profile was producible. The defendant was concerned, however, that if the plaintiff was simply ordered to produce the content, she would remove the information from her profile before it could be collected. In support of this concern, the defendant relied on the earlier Ontario case Kourtesis et al v. Joris4. In that case, photographs that the court had ordered produced were removed from the website on which they had been posted, and could not be recovered.

To relieve against this possibility, Justice Ferguson ordered that the plaintiff's counsel must retain an independent solicitor who would serve the plaintiff with the order, and immediately require her to download all data from her private Facebook profile. Justice Ferguson specifically ordered that the plaintiff may not have any advance notice of the order.

Consequences for Litigants and Potential Litigants

These cases raise two important points for litigants and potential litigants. First, individuals must be aware that any information posted to their Facebook profile, including photographs, videos and other data, may be ordered produced. This applies whether or not the individual has made the content publicly available, or chosen to restrict access to his or her profile. Although only relevant information must be produced, based on the nature of Facebook as a vehicle for "sharing," the court may infer that an individual's Facebook profile contains relevant information.

Second, litigants and potential litigants must be aware that they may be ordered to preserve this information without prior notice. There will be no opportunity to remove embarrassing or otherwise inappropriate material from a Facebook profile before its preservation. Of course, relevant information must always be produced, no matter where it is located. The effect of these decisions, however, is that irrelevant information may be ordered to be preserved while the determination of relevance is being made. Accordingly, individuals should be aware that any content posted to Facebook, whether or not it is made publicly-available or hidden behind Facebook's own privacy settings, may find its way into the open.


1 Leduc v. Roman, 2009 CanLII 6838 (Ont. Div. Ct.) ("Leduc")

2 Leduc at paragraph 32.

3 Sparks v. Dubé, 2011 NBQB 40 (N.B.Q.B.)

4 Kourtesis et al v. Joris, [2007] O.J. No. 5539 (Ont. S.C.J.) ("Kourtesis")

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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