Facebook, Privacy, and Family Litigation; Facebook as a Source of Evidence in Family Law: Part 5
In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation. Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party’s profile to undermine his or her legal position in a family dispute.
In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.
This has arisen recently in a few insurance cases, both from Ontario and other provinces. (And the evidentiary legal principles derived from those cases have equal applicability to family law matters). The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity. They were suing their insurers for their damages.
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs’ Facebook photos, and the evidentiary value of that information.
In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his “friends” to whom he had deliberately granted access). The question was whether the court should grant the insurer access to these. It held that an individual user’s Facebook “privacy settings” were irrelevant to the court’s ability to order the information and photos produced. The mere fact that the plaintiff was willing to “share” his photos and other personal information with the public via a social networking website – even if only to a limited pool of “friends” – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.
In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence. There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as “ziplining”. The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial. (Indeed, this precise thing had happened in another case called Kourtesis v. Joris: before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered. They were therefore lost as evidence.) The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks: it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.
Finally, the issue of the precise scope of such a preservation order came up in the decision in Schuster v. Royal & Sun Alliance. There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile. The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a “fishing expedition”. Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile. The relevancy of each would be determined by the court at a later date. (This principle was followed in another recent Ontario case called Re McDonnell.)
Collectively, these cases give rise to several important points for family law litigants:
• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action. This includes photographs, commentary and videos.
• The location of the information – i.e. public or private profile – is irrelevant. It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.
• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.
• However, this does not mean that party with the order will be handed the other party’s username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.
For the full text of these decisions, see:
Leduc v. Roman, 2009 CanLII 6838 (Ont. Div. Ct.)
Sparks v. Dube, 2011 NBQB 40
Kourtesis et al. v. Joris,  O.J. No. 5539 (S.C.J.)
Schuster v. Royal & Sun Alliance Insurance Co.  O.J. No. 4518 (S.C.J.)
Re McDonnell,  O.J. No. 5689 (S.C.J.).