The new reality – serving legal documents through Facebook?

Facebook – the quintessential communication portal. Many people spend numerous hours messaging, writing on walls, and taking quizzes on Facebook. But what is the impact of Facebook on our judicial system? Ideas of privacy, admissibility of evidence, and other issues rise up with the advent of a new era of utilizing Facebook as evidence, as seen in recent cases.

With more than 140 million users worldwide, Facebook is playing an increasing role in people’s lives. It is not just a teen fad: users over 25 make up its fastest growing demographic. Other social networking websites such as Myspace, Twitter, Flickr and others act as competitors of Facebook, offering similar services and encountering the same obstacles – namely privacy.

Its not unlikely that most of our esteemed readers have an account set up in one or more of these websites that prominently display personal information including name, birthday, sex, political views, and pictures. Of course, many have set up limited profiles, thus allowing them to choose to whom they wish to provide this personal information. But are they secure in their supposedly “limited” profile, or can this privacy be overturned by the need for litigants to access information relevant to a case?

Unfortunately, for the general public (and possibly fortunately for their lawyers), the Canadian courts have tended to overlook privacy granting access to private information for the purpose of litigation. Canadian courts have thus far determined that the content of web-based networking sites are “documents” and have to be disclosed if relevant to the case. Technology has developed, and so the courts must adapt to the changing world.

Facebook in Ontario
Murphy v. Perger, (2007) O.J. No. 5511 (unreported – court file no.: 45623/04 – released October 3, 2007 – Ontario Superior Court of Justice) and Leduc v. Roman, 2009 O.J. No. 681 are two of the most recent cases that address the issue of Facebook “documents” as evidence. In Murphy, the judge ordered Facebook pages to be produced because of the public nature of the website. He concluded that “any invasion of privacy [was] minimal and outweighed by the defendant’s need to have the photographs in order to assess the case.” He further stated that the plaintiff does not have any serious expectation of privacy because 366 people (the plaintiff’s friend’s list) were granted access to the plaintiff’s private site.

Justice Brown in Leduc followed a similar line of reasoning, concluding that

“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 related to any matter at issues in an action…To 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.” (paras 31-32 & 35)

Essentially, he stated that a court can infer that a Facebook site contains relevant information to the issue of the plaintiff’s life up to and after the accident. Furthermore, Facebook cannot be used as a means to hide behind self-set privacy controls on a website that is designed to tell others about one’s life.

Facebook in the rest of Canada
This phenomenon is not just limited to Ontario. In Canada, the most recent case to come forward that portrays the influence of Facebook was Terry v. Mullowney, 2009 NLTD 56, a Newfoundland injury case. The plaintiff suffered moderate whiplash injuries from two motor vehicle accidents. He exaggerated his injuries and claimed that the extent of the injuries negatively affected his social life because his friends stopped calling when he declined repeatedly. He further stated that he was unable to play pool because his injuries did not allow him to bend.

However, the defense lawyers were able to use Facebook activities as evidence to disrepute the plaintiff’s claim. Justice Adams of the Provincial Supreme Court concluded that “[w]ithout this evidence, [he] would have been left with a very different impression of Mr. Terry’s social life.”, thereby dismissing his claim. Mr. Terry was claiming a $1.5 million payout and was given $40,000 instead. His credibility was undermined because of his activities as displayed on his public profile on Facebook.

Facebook in the rest of the world
The advent of Facebook activities as evidence has expanded to Australia as well where court documents were served using Facebook. The Australian Capital Territory Supreme Court approved lawyer Mark McCormack’s application to use Facebook to serve legally binding documents after several failed attempts to contact the couple at the house and by email.

The future of Facebook in courts
Although Facebook is a relatively new topic in courts, no one can deny its significance for the future. With Facebook continuing its upward trend of growth with an increasingly diverse user base, it is likely that courts will adopt the “living tree” approach and continue to incorporate Facebook as “documents” that can be used as evidence. With no privacy settings safe, perhaps the safer alternative may be to abstain from declaring to the world information that may be too personal or revealing by putting it on one’s profile. Lawyers too might need to change their tactics, opting to conduct Internet searches for their own clients to avoid any tactical errors. No one is safe from the prying eyes of Google and now, Facebook.

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