Parties to litigation cannot hide behind Facebook privacy
controls during the discovery process according to a recent
decision of the British Columbia Supreme Court. In Fric v
Gershman,1 the plaintiff in a motor vehicle
accident claim was ordered to review and produce thousands of
photos depicting her travelling and participating in social and
sports activities, including those from her private Facebook
In its ruling, the court addressed several key issues that
define the developing area regarding disclosure of information on
social networking sites such as Facebook.
First, courts have held that the information contained on
Facebook must be relevant to an issue in dispute. In Fric,
the court held that the plaintiff had put her physical functioning
and activity level in question by claiming damages for loss of
amenities of life, loss of mobility and diminished earning capacity
as the result of pain and fatigue. Photos depicting the plaintiff,
a recent law school graduate, travelling or engaging in social and
sports activities, such as an inter-university competition known as
Law Games, were relevant to her claims for physical impairment and
However, mere proof of the existence of a Facebook profile does
not entitle a party to gain access to all information in the
profile. Courts will not grant "fishing expeditions"
simply because an individual's general health, enjoyment and
employability are at issue. Courts have granted production where
the plaintiff has acknowledged the existence of relevant
information in his Facebook profile or where the public portion of
a Facebook profile contains relevant information that suggests it
is likely the private part of the profile contains similar
In Fric, the plaintiff gave evidence at her examination
for discovery that she had posted photos of herself travelling and
participating in events such as Law Games on her Facebook profile.
As her physical and social capacity were relevant, an order was
granted requiring her to produce photos where she is participating
in Law Games and on vacation.
Privacy concerns also arise from the production of information
stored on Facebook. For instance, courts have held that while a
party may be required to produce information from their Facebook
profile, they are not required to give up their username and
password to the opposing party. Third party privacy rights must
also be given special attention. The plaintiff in Fric was
allowed to edit her photos to protect the privacy of her friends
and others appearing in her photos. Similarly, commentary
associated with the plaintiff's photographs posted on Facebook
was not ordered to be produced. The probative value of Facebook
commentary was outweighed by the interest in protecting the private
thoughts of the plaintiff and third parties.
Two key themes emerged from the decision. Firstly, in the age of
digital media, the courts are mindful of the proportionality of
requiring parties to disclose potentially thousands of photos
versus the benefit of such disclosure. Where production would
require the review of hundreds of documents and potentially delay
trial, courts have declined to order production However, in
Fric, the court dismissed the plaintiff's concern that
the court's order would require her to review over 12,000
photographs, in addition to several hundred more on her Facebook
Secondly, where there is a real and legitimate concern that
information could be permanently deleted from Facebook, courts may
issue an injunction or preservation order until the information has
What is it all worth in the end?
Individuals required to disclose photos from their Facebook
account depicting them as physically active and socially engaged
should not despair however. Courts are reluctant to place much
weight on mere snapshots of an individual's life. In
Guthrie v Narayan,2 the court held Facebook
photos of the plaintiff's recent Las Vegas trip were of
"limited usefulness", noting the plaintiff was
"seeking compensation for what she has lost, not what she can
still do" and that "she should not be punished for trying
to get on with her life".
As Fric and recent cases have demonstrated, where there
is evidence of information relevant to an issue in dispute, an
order for production will likely be granted, regardless of the
level of Facebook privacy protection. However, "fishing
expeditions" are still prohibited and production may be
subject to conditions to protect privacy interests, including those
of third parties. In the end, the weight such information has at
trial may be as fleeting as a Facebook status update.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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