Canada: When "Private" Isn't Private: Discovery In The Age Of Facebook

Last Updated: September 10 2012
Article by Joan Young and Daniel Shouldice

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 account.

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 social withdrawal.

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 information.

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 profile.

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 been produced.

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.

Footnotes

Fric v Gershman, 2012 BCSC 614.

2 Guthrie v Narayan, 2012 BCSC 734.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2012 McMillan LLP

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