Tariq Remtulla of Blake, Cassels & Graydon LLP has a good summary of the Leduc v. Roman case—the one that spawned the Justice Brown's hilarious ruling that any junk you throw on a social networking site (like Facebook) has no reasonable expectation of privacy because, well, you went and put it on the Internet. Which is publishing, and therefore has a diminished expectation of privacy. Shame on you for thinking it was something else.
Discoverability Of Access-Limited Documents
In order for a court to order production of a document under Rule 30.06, a court requires evidence, as opposed to mere speculation, that a potentially relevant undisclosed document exists. This may prove difficult for a party seeking production of a private document, such as a private or limited access Facebook profile, given that the party is not able to access the private Facebook profile to determine whether it contains relevant information.
The majority of Canadian cases dealing with the production of Facebook postings have involved publicly available content. Prior to Leduc v. Roman, the only case that had considered the question of the production of access-limited content of a Facebook profile was Murphy v. Perger, a case that also involved a claim for damages resulting from injuries suffered in a car accident, including a claim regarding loss of enjoyment of life. In that case, Justice Rady held that, where in addition to a publicly accessible profile, a party maintains a private Facebook profile, a court can infer from the nature of the Facebook service the likely existence of relevant documents on a limited-access Facebook profile.
Justice Brown found that Master Dash had correctly interpreted Rule 30.06 as requiring some evidence from a moving party pointing to the omission of a relevant document in the other's affidavit of documents. However, in Justice Brown's opinion, Master Dash had erred in exercising his discretion under Rule 30.06 without applying the above principle articulated by Justice Rady in Murphy v. Perger. Master Dash held that the existence of Mr. Leduc's Facebook profile was not reason to believe it contained relevant evidence about his lifestyle. Master Dash distinguished the court's decision in Murphy v. Perger by noting that the plaintiff in that case had posted public photographs on her Facebook profile and had given the defence photographs as part of her productions, therefore creating a reasonable suspicion that the private part of her Facebook profile contained additional relevant photos. Master Dash found that the defendant, without any such evidence, was just fishing.
Justice Brown disagreed, stating: "With respect, I do not regard the defendant's request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated "friends" access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident." [para. 32]
Justice Brown also found that Master Dash, having granted a consent order that Mr. Leduc serve a Supplementary Affidavit of Documents, erred in dismissing the motion to produce without affording the defendant an opportunity to cross-examine Mr. Leduc on his Supplementary Affidavit of Documents about the kind of content posted on his Facebook profile. Justice Brown felt that: "[t]o permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." [para. 35]
— Tariq Remtulla. "Facebook Not So Private? Ontario Court Finds Facebook Profile Discoverable", Blakes Bulletin on Litigation, March 2009.
In short, Facebook is a site designed to share stuff. If you sue somebody for damages, a court is going to want to let the defendant poke around in your private Facebook junk to see whether your life has changed significantly enough to warrant the damages being sought. It doesn't matter that you've designated some information as off-limits and private; the fact that you've published a public profile causes the court to infer that you wanted somebody to know your private stuff on the same site.
So the next time you get into a minor fender-bender, set up some kind of scripting agent to post Facebook status updates every half hour, saying "OMG THE PAIN THE PAIN MY LIFE SUCKS NOW WHY OH WHY DID THAT ASSWIPE HAVE TO HIT ME". Also, delete any photos you've posted, pre- or post-accident, where you are smiling or having fun.
Justice Brown has now given us all an excellent reason to close down our Facebook and LinkedIn profiles because the crap you share there—regardless of self-regulated access settings—is, in the eyes of the law, about as private as those big billboards on the Gardiner Expressway. Ergo most T&C content on Facebook has been neutralised with extreme prejudice. I have no plans to sue or be sued, but why leave it out there. Sooner or later somebody with a bigger net will go trolling for some poor sod's info, and the precedent's already been estabilshed. Way to go, Justice Brown.
RELATED: This comment of pure awesomeness by David, at a TechDirt article chronicling Leduc v. Roman.
So if someone takes a nude photo of themselves, by this judges reasoning, it would not be private. You know what you look like naked. Since you took a picture, you must be intending to share it with someone. And if you're going to share it with one person, even once, it's not private.
Sorry ladies, but you heard the man. Start posting!