Facebook Privacy: Are you Friends with the Whole World?

October 16th, 2013 by Marc Spivak

Facebook has become a social networking hub for over 1 billion people worldwide. We often use Facebook to post or message personal information without thinking twice about it: photos of us with our friends on the weekend, private messages expressing our deepest and darkest secrets, Timeline posts alerting our Facebook “friends” that we are leaving for a vacation, and Wallpaper comments about our employer or complaints about our work or our fellow employees.

Sir Francis Bacon coined the phrase, “knowledge is power”. With Facebook, one should ask just who is being provided with so much information or knowledge about you, and how will that power be used?  Who have we entrusted to be your Facebook friend?  Close friends and family? Work friends and business associates? Old school friends and long out of touch? We might be surprised who is our Facebook friend!

Facebook Privacy is a serious matter. Let us assume that we are all cautious enough to know that we need to have Facebook security settings set on “Friends Only” access to Photos, Wallpaper, Timeline, and Personal Information. However, how sure are we that every Facebook friend is who they claim to be? We should be asking how difficult is it for someone to use a high school friend’s name to become our Facebook friend? Google “Facebook cracker” and see 77 million hits advertising methods to crack into Facebook accounts. Be aware of the countless companies in Europe offering the service of cracking a Facebook account for a fee. Are you concerned yet?  Facebook Privacy & Security experts say you should be.

Identity theft has risen dramatically with all of the personal information that may be obtained from Facebook. Excitement over leaving on a week- long vacation may also be very exciting for people with access to our account looking for an unoccupied house. Photos of our fancy cars or houses or jewelry may catch someone’s attention looking for particular items to steal. The problem with Facebook and Facebook Privacy is that we just don’t know who is accessing our account.

What may be less obvious to many is that what we put on Facebook may actually be used against us during litigation. This often arises in the context of personal injury claims, where photographs or messages depicting contradictory evidence to a plaintiff’s claim could be very relevant to litigation. It could also arise in many other contexts, including employment-related proceedings.

What seems at one moment to be a clever or humorous comment may have serious and sometimes disastrous consequences!  The case law dealing with the issue of whether a party to a dispute can be compelled at trial to produce material put on Facebook is somewhat conflicting and often very fact-dependent. The courts are continuously seeking to strike a balance between individual privacy interests and the interest of ensuring that relevant evidence is available at trial.

In Murphy v Perger, a 2007 case, the court held that the injured victim should be compelled to produce Facebook photographs posted privately on their Facebook for only “friends” to view. The court based this decision on essentially two grounds: Firstly, that the photographs met the test for relevancy, as there was the potential that some of the photographs would enable the defendant to assess their case, and secondly, that the injured victim could not have had a reasonable expectation of privacy, since 366 Facebook “friends” were allowed to have access to those photographs. Similarly, in the 2009 case of Leduc v Roman, the court held that anything posted on Facebook was potentially compellable if it was related to any matter at issue in the litigation.

In a more recent 2012 case, Stewart v Kempster, the court again considered whether the injured victim should be required to produce Facebook photographs posted privately on Facebook. In reaching a decision, the court, as in Murphy and Leduc, considered whether the photographs were relevant to a matter being litigated. However, in Stewart, the court found that the photographs were not relevant, as they did not provide any insight into whether the injured person was actually suffering from the physical limitations pleaded. This was despite the fact that the defendant had argued that the pictures were relevant to defending against the victim’s claim for loss of enjoyment of life.

The court in Stewart distinguished Murphy partly on the basis that in Murphy, relevant publicly posted photographs on the plaintiff’s Facebook account had created an inference that there were also relevant privately posted photographs. The court in Stewart also took a different approach from Murphy on the issue of whether there was a reasonable expectation of privacy. The court contended that while the plaintiff allowed 136 “friends” to view a private profile, 1 billion other users on Facebook were excluded. As such, the court concluded that the injured person did have a real privacy interest in the photographs. Nevertheless, the court in Stewart also notablyremarked that had the photographs actually depicted the plaintiff involved in strenuous physical activity, the result may have been different, and the plaintiff may have been compelled to produce the photographs.

Facebook case law is far from settled. Injured accident victims should assume that anything on Facebook could potentially be used in litigation and should be comfortable with the possibility of having opposing counsel and the court as Facebook “friends”. An experienced personal injury lawyer should always be there to walk clients through the myriad web of social networking and Facebook Privacy concerns.

For further information or assistance in regards to personal injury, please contact Marc Spivak or one of our Toronto personal injury lawyers. Marc is managing partner of our personal injury group at Devry Smith Frank LLP.


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