Cough up your Facebook profile—a lawyer’s view

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!

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13 Responses
  1. Alan says:

    The nude picture analogy is not apt. When you put information out into a small group you are not controlling the scope of the dissemination. In the good old days no one questioned the discoverability of a private letter from one person to another. There is nothing stopping Grannie from sharing the contents of your Xmas card to the rest of the nursing home or the rest of the planet. By extending a statement of opinion or data to one, you extend it to the world. That is what “not private” means. Social networks in all their awfulness are also not private at all.

  2. Chris Taylor says:

    When you sent a private letter to someone, you exercised no control over that letter once it left your person, made its way through the postal system, and was delivered to the addressee.
    On Facebook, you may change your published data at a moment’s notice, remove it, revoke reader access to it, and so on. You exercise a degree of control over it that is not possible with ordinary letters, e-mail, or even ordinary Google-cached websites.
    The only way the old 18th century understanding of publishing holds up is if the reader religiously caches old data (say via screenshots, or saving his browser’s cache every couple of days) so that, should the data (or his access to it) change, he’s still able to view it as it existed at the time of initial viewing.

  3. Alan says:

    Letters provided for the same thing. When I draft a will or a contentious agreement, I have those signing initial each page to ensure a page saying “X” can’t be swapped out. It was also prone to tampering and, with the simple loss of a page, data rot. But one does as best with the evidence as one can. The phenomena you are describing also applies to memory yet we put people on the stand.

  4. Chris Taylor says:

    I think it is rather the opposite.
    Facebook does not strive to prevent the user from “tampering” with his data once it is entered… it is supposed to remain easily modified and changeable. There are no provisions for keeping the data in stasis at a given point in time.
    I am not so opposed to putting the information on the stand as I am in doing so under provisions which intentionally mistake an otter for an elephant.
    This legislature and judiciary are trying to shoehorn 21st century procedure into a much older model of information distrbution. It’s an inelegant and inaccurate fit at best.

  5. Alan says:

    I think my point is that other forms of evidence are all easily modified and changeable. There is nothing that unique about 21st century digital records.

  6. Chris Taylor says:

    Indulge me then.
    Explain how a letter’s author can modify the contents of said letter after it has been received by the recipient. Without the cooperation or collusion of the recipient.
    This is, after all, what social networking permits. Where is the paper publishing equivalent?

  7. Alan says:

    You can’t look at the content as fixed to the medium. The content is the message. The message can be manipulated. Once I sent a man an email then regretted it, went to his office told his secretary I needed to get something I forgot and deleted it. I could have as easily replaced or removed a page from a letter. Yesterday, I realized someone whose work I had to review has filed two almost identical or contradictory documents. The person had an intention but the duplication makes any understanding impossible. In a third example, I was once in court when a letter was introduced as evidence. The corner was removed. No one could explain why or when or what had been on it. In each case the physical document is not a problem. But in each the integrity of the information is brought into doubt.

  8. Chris Taylor says:

    Okay I see where we’re headed here.
    My argument is that the degree of control exercised by the author over his social media data, post-publication, is greater than that of a traditional paper publisher over that of his data, post-publication. So while paper publishing is a close analogue to the digital social media realm, I don’t know that it’s 100%. Or even 75%. I think that the revocation abilities inherent in some social media make it a lot closer to say, a private club, or a performance, than traditional publishing.
    Your argument, if I am apprehending it correctly, is that there are lots of cases in which data integrity can be violated regardless of the medium, yet it all gets dredged up for discovery nonetheless. I agree that in some cases private data can and should be made available for discovery. In order for the legal system to have some hope of functioning in a just way, that much is necessary.
    Let’s modify the circumstances of the case a little. If Leduc had a Facebook profile but zero friends, would the mere existence of his profile still be sufficient grounds for the court to say that hey, there is probably something in there relevant to his enjoyment of life, pre- and post-accident? What if he had two friends? Or six, instead of a hundred and change?
    In essence what is the proper threshold for the court to make the deductive leap that because a guy has a wad of friends on a particular site, he must be blabbing some information there about his quality of life.
    It would be damn hard for somebody trolling my Facebook profile to make any definitive statements about how I am enjoying my life, since I tend to update my status once or twice a month, if I’m lucky. And I do not upload photos (except for a profile pic) at all.

  9. Alan says:

    I agree with all that. It is the role and the skill of a judge not only to receive and compare evidence but also to weigh it. The court needs to learn about and take into account records located in all the new sorts of media. People who suggest that this is new, as some of the sued do, are quite shocked to find out that what they thought was private or more like a conversation is part of the record of a case. But this is no different from people who didn’t know they were being recorded under a warrant or who were in the slammer with a snitch.
    In the end, the processes of law will not be defeated by new media.

  10. Chris Taylor says:

    I’m not suggestiing that new media be exempt from currently existing laws, or will “defeat” them. I am suggesting that the judge’s reasoning is flawed and unsound, based on a simplistic apprehension of how the medium is used.
    The mere presence of a Facebook profile doesn’t indicate that you want to share your quality of life with the rest of the world. Frequent status updates and many picture uploads might say that. You could be a user like Kateland, who shares absolutely nothing on Facebook but has a few friends.
    If you want to permit discovery based on the fact that the plaintiff updates his status every day, well, that’s one thing.
    Basing it on the fact that a profile exists and he’s got X number of friends begs the question of thresholds. At what level does one’s number of friends imply a high probability that you are sharing the highs and lows of your quality of life? Is that number single-digit, double-digit, or triple-digit?

  11. Alan says:

    “The mere presence of a Facebook profile doesn’t indicate that you want to share your quality of life with the rest of the world.”
    It really doesn’t matter what you want with your Facebook or other digital media, it’s what you did with them and what can can be gleaned in light of other information. That is the job of a judge – acting as an aspect of the sovereign – and not the citizen.

  12. Chris Taylor says:

    Must everything be a game of semantics with you? It’s tiresome.

  13. Chris Taylor says:

    The judge is a moron for assuming that anything truly useful can be gleaned about a person’s mental state from the front they present to the rest of the world on the internet.
    If your daily activity and level of satisfaction with life can be determined from even the private sections of a social media site, then by God you are not—whatever your mind may be telling you—enjoying life, nor leading a particularly fulfilling one.