Whether it’s the book you’re currently reading, the colour sweater you wore yesterday, or your penchant for needle point, the entire gambit of your personal information can be made readily accessible through social networking websites. In an emerging line of cases, judges of the Superior Court of Ontario have considered the extent to which a party to litigation has an obligation to produce this information, with a particular focus on Facebook profiles. 

Until recently, thanks to Facebook’s privacy settings, users could take comfort in knowing that posted photos and other personal information are only visible to people of their choosing.  However, this sense of comfort may have been misplaced. In the event of a lawsuit, those photos you posted of what you did last weekend may no longer be just between you and your 300 closest Facebook friends.

The Ontario Rules of Civil Procedure impose a positive obligation on parties to produce “every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party.” Although web-based social networking sites are relatively recent phenomena, their posted content constitutes “data and information in electronic form” producible as documents under the Rules of Civil Procedure. As such, the court can compel individuals to provide this content to opposing parties for the purpose of litigation.

Two recent decisions of the Ontario Superior Court suggest that courts are going to require that relevant information contained on people’s Facebook sites, and other social networking websites, be produced in the context of personal injury litigation.

In the 2009 case Leduc v. Roman, a plaintiff injured in a motor vehicle accident was claiming damages for, among other things, loss of enjoyment of life. Through the litigation process, the defendant found out that the plaintiff had a Facebook profile. The publicly-accessible part of the plaintiff’s profile was limited to a photograph of the plaintiff and his name. The defendant brought a motion seeking the preservation of all information on the plaintiff’s Facebook profile and the production of this information.

Master Dash, who decided the motion at first instance, denied the defendant’s motion for production. He characterized the motion as a “fishing expedition” because the defendant was unable to produce any evidence about the contents of the plaintiff’s Facebook page. The defendant appealed Master Dash’s decision.

In the appellate decision, Justice Brown explained “that a person’s Facebook profile may contain documents relevant to the issues in an action is beyond controversy. Photographs of parties posted to their Facebook profiles have been admitted as evidence relevant to demonstrating a party’s ability to engage in sports and other recreational activities where the plaintiff has put his enjoyment of life or ability to work in issue.” While Justice Brown did not order production of the Facebook page, he did grant the defendant leave to cross-examine the plaintiff about the nature of the content that the plaintiff had posted on this page to determine whether it was relevant to the case.

In a subsequent 2009 case, Wice v. Dominion of Canada General Insurance Company, Justice Boswell went a step further than Justice Brown did in Leduc. He required the plaintiff to disclose information from his Facebook profile and preserve all information in his Facebook account for the duration of the litigation.

In Wice, the 35-year-old plaintiff had suffered a traumatic brain injury in a motor vehicle accident and was claiming medical and rehabilitation benefits from his insurer. His claim raised issues about his ability to function in a variety of situations. The defendant produced evidence indicating that relevant photos of the plaintiff’s social activities were posted on his Facebook profile.  Accordingly, Justice Boswell required that the plaintiff produce relevant documents (including the above-mentioned photos) from his Facebook account and any similar account.

Perhaps what is most alarming about these cases is that the plaintiffs’ Facebook pages were private or “closed” ones, meaning that their contents were only visible to people whom the plaintiffs had given permission to see them. Despite the plaintiffs’ choice of privacy setting, they were ultimately required to disclose information that they had otherwise expected would be private. In Leduc, Justice Brown explained: “A party who maintains a private, or limited access, Facebook profile stands in no different position that one who sets up a publicly available profile. Both are obligated to identify and produce any postings that relate to any matter in issue in an action.”

Nevertheless, not all Facebook profiles will need to be disclosed. Rule 30.06 of the Rules of Civil Procedure requires the presentation of some evidence that a party possesses a relevant document before a court can order production. As a result, parties seeking disclosure of a Facebook profile’s contents will need to provide evidence that the profile contains information relevant to the proceedings. The extent of the evidence that will need to be provided remains unclear. What we can be certain of, however, is the need to be increasingly guarded about what information we make publicly available on social networking websites.

If you have any further questions about this article, please contact Stephanie Lewis at 613-237-4000 x. 205 or slewis@brazeauseller.com.