Wednesday, 25 March 2009

Only a question of time: Canadian court orders man to reveal Facebook profile

It is probably only a question of time here, as a Canadian court has held that a man has to reveal his Facebook profile as part of his obligation to disclose relevant documents.

In Leduc v Roman, a case involving a motor vehicle accident, Mr Leduc had a Facebook profile. Access was restricted to friends only.

When the matter first came before the court, the defendant was unsuccessful in obtaining an order for access to the Facebook profile, so the defendant appealed. Successfully. Ultimately the defendant was allowed to cross-examine Mr Leduc before obtaining an order to trawl through Mr Leduc's Facebook profile.

Possession or control

Because Mr Leduc had the ability to control his settings, and it was after all his profile, intended to show to others and not for the purposes of talking to himself, the profile was under Mr Leduc's possession or control. Therefore, if relevant, the electronic documents would be obliged to be disclosed by Mr Leduc.

Nature of Facebook

Justice Brown held:


Where a party makes extensive postings of personal information on his publicly-accessible Facebook profile, few production issues arise. Any relevant public postings by a party are producible. An opposite party who discovers and downloads postings from another’s public profile also operates subject to the disclosure and production obligations imposed by the Rules.

[30] Where, in addition to a publicly-accessible profile, a party maintains a private Facebook profile viewable only by the party’s “friends”, I agree with Rady J. that it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile.

[31] Where, as in the present case, a party maintains only a private Facebook profile and his public page posts nothing other than information about the user’s identity, I also agree with Rady J. that a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others. From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.

[32] A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. 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.

Comment

It is probably only a question of time before a similar argument comes before the Australian courts. The types of cases where it is most likely to be argued are:
  • personal injury cases, like Leduc v Roman- where an issue is the ongoing capacity of an injured plaintiff to work
  • family law cases, where issues such as attitude to parenting (and the other parent), earning capacity, ability to parent, all come into play.

This type of case is not limited to Facebook or Myspace. One could well imagine parties wanting to look at their ex's adult connections type site. The case is a signal reminder that posting information on the web has all kinds of risks. Those going through a family law split are often the most vulnerable to a vengeful ex determined to dig up dirt for some perceived advantage in the court case.

Poster beware!

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