Facebook recently advised that I have celebrated my 10 year anniversary with them – longer than my actual wedding anniversary! For most, social media, such as Facebook is a means to sharing events, photographs, opinions, and information on life events. However, should there be an expectation that those posts remain private, when involved in litigation?
In Jones v. I.F. Propco Holdings (Ontario) 31 Ltd, Justice Leitch dealt with the issue of producing Facebook posts. In this action, the Plaintiff claims that she was hit on the head by ice from the Defendant's property. At examinations for discovery, the Plaintiff refused to produce her Facebook activity, including profile posts and comments dating 5 years pre-accident to the present. The Defendant submitted that the Plaintiff had provided statements from several witnesses who were expected to provide evidence on the effects the accident had on the Plaintiff's employment, extra-curricular involvement, family etc.. and therefore, her private Facebook posts were also relevant.
The Plaintiff had already produced the public portion of her Facebook profile going back 2 years pre-accident until just before this motion was heard. The Defendant took the position that given the relevant content found on the public portion of the Plaintiff's Facebook profile, that her private portion would be as relevant and therefore, wanted it produced. The Defendant relied upon the decision in Ryan v. Perger, a 2007 decision where the focus was on photographs of the Plaintiff on Facebook and where the Court held that "given that the public site includes photographs, it seems reasonable to conclude the private site would as well." The Court concluded "that the invasion of the plaintiff's privacy in that case was minimal and outweighed the defendant's need to have the photographs in order to assess the case and specifically noted that the photographs on the private site had been shared with 366 people".
It was the Plaintiff's position that the public photographs showed the Plaintiff prior to the accident, hugging her grandchildren, planting a flower, leaning against a structure and sitting. Reference was made to Stewart v. Kempster, where Heeney J. held that the photos on the plaintiff's private Facebook page were not relevant and had no "probative value", because they depicted the plaintiff standing, sitting, or leaning He noted that if the photographs had shown "the plaintiff water skiing or rock climbing, they would [have been] relevant to demonstrate the extent of her physical limitations following the accident".
In Knox v. Applebaum Holdings Ltd, the defendant's request for photographs on the plaintiff's private Facebook account was refused because there was "no evidentiary basis to satisfy the test of relevance to justify an order for production".
Accordingly, it was noted the push and pull between privacy and relevance. In M. (A.) v. Ryan, reference was made to the Stewart decision which held that
I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.
Also, weight was given to the fact the Plaintiff had kept her profile private and even though she shared her posts with her friends, it was not to the 1 billion users currently on Facebook. Furthermore, the public photographs were not persuasive in showing the Plaintiff's physical limitations since the accident. Therefore, the Court did need not assess the privacy interests of the plaintiff against any probative value obtained from the disclosure.
Accordingly, the private portion of the Plaintiff's Facebook were not ordered to be disclosed.
In Ontario, if you have a Plaintiff with a Public Facebook site, then it is all producible. However, if you have a Plaintiff with a mixed Facebook profile (some portions private and some portions public); unless there are posts, or photographs on the public site that are compelling and relevant to the action at hand, the Court will be reluctant to allow access to the private portions of the account. This would hold true with accounts such as Instagram or Twitter which also have a private and public component for users.
In the USA, there have been cases where the Plaintiff has been ordered to turn over log in information to the Defendant. In Largent v. Reed the Plaintiff updated her Facebook status to discuss her new workout routine after claiming serious and permanent physical injuries sustained in a car accident. It is doubtful that type of decision would occur in Ontario, but Largent may provide a compelling precedent.
However, the USA, as in Canada, had applied the same test: "The party seeking your posts must show that the requested information may reasonably lead to the discovery of admissible evidence."
Something to keep in mind for your next FB post.
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.