We are pleased to announce that Cyberinquirer is among the group of initial nominees for the Top Insurance Law Blogs of 2011!
Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. And, as we write this, LexisNexis is in the process of selecting the Top 50 Blogs for the LexisNexis Insurance Law Community. The selection will be based on LexisNexis’s review of various insurance law-related sites as well as comments from its members. And here’s where the shameless plug for Cyberinquirer come in…
In order to vote forCyberinquirer (and for those of you who will, thanks in advance for doing so!), you will need to be a registered LexisNexis Community member and be logged in. If you have not registered previously, follow this link to create a new registration or use the sign-in credentials from your favorite social media site. Registration is free. Once you have logged in, scroll to the very bottom of the page. Then add a comment in the box to vote for Cyberinquirer. That’s all there is to it! Please note that voting ends on October 7, 2011.
And, thanks again for supporting us and our geeky hobby.
A: They are some of the Google Search Terms that have brought readers to our site this week.
A list of this week’s Top Google Search Terms leading to Cyberinquirer, and some other cute cyber-related gags that have qualified for our “Weekend Funnies” post, are set out below. I was flattered to see my name appear on the search list unaccompanied by terms like “lawyer” or “cyber geek” or “unhygenic”. Here’s the list: Read the rest of this entry »
We would like to thank our devoted readers for making our site the world’s 3,364,537 most popular website as ranked by www.mostpopularwebsites.net! Considering that there are billions of websites online today, the fact that our site merits a specific ranking is a big deal to us. As you will see, we have proudly posted our newly discovered status on the left column of the site. It’s a dangerous job, but somebody has to do it!
Clearly, our popularity is due to the nature of our substantive, high-caliber content posted on a regular basis (“regular” being defined in the context of a not-for-profit blog with busy contributors who, generally speaking, require the pulling of only a few teeth to motivate the production of articles). We admit, however, that we have occasionally found ourselves grappling with the conflicting desires of (1) maintaining serious, topical high-quality posts on cyber law and insurance related topics; and (2) posting random, funny, goofy stuff, just for the heck of it. This inclination hits us at odd times…like an afternoon at the office when we should, instead, be putting the finishing touches on a mediation brief. In this post, we have therefore attempted to strike a compromise post that is both informative, random AND goofy. Intrigued? Then please read on. Read the rest of this entry »
We wrote to Google and asked what information was required to subpoena Gmail in order to determine the identity of an email customer. Google’s response is below:
Dear Ms. Pengelley:
The information requested relates to services offered by Google Inc., a U.S. company organized and operating in the U.S., and governed by U.S. laws. As such, we ask that your request be directed to Google Inc. – Attn: Legal Department, and communicated through the proper legal channel. Please direct further communications to Google Inc. – Attn: Legal Department – at 1600 Amphitheatre Parkway, Mountain View, California, 94043, US, Fax: + 1 650.469.0622, or by email at lis-global@google.com.
Since the weekend is soon to be upon us, we thought that you might enjoy some light entertainment! We feel justified in posting these because they are, technically speaking, cyber-related…this week we’ve adopted the “social media” cartoon theme. We would like to extend our special thanks to the authors who created these posts and put smiles on our faces! Enjoy!
We have all heard a story about some unfortunate personal injury lawyer who forgot to remind his client that ‘what happens in Vegas stays on YouTube’. Personal injury and family lawyers are becoming highly attuned to the crucial role that social media websites can play in civil litigation.
Yet when it comes to cases involving property damage, it appears that lawyers and other subrogation professionals have overlooked the potential utility of these sites in advancing their case. This post highlights some important ways in which YouTube can play a role in a subrogated claim for property damage.
1. A Search Engine for Video Evidence
YouTube is the second largest search engine in the world. As of March, 2010, twenty-four hours of video was being uploaded to YouTube every minute. To put this in perspective, consider that more video is uploaded to YouTube in 60 days than all three major news networks have created in 60 years. [1] What does this mean? If you have a property damage claim, stop for a minute and think about whether it was an event that was likely to warrant a second glance. Were there flames? An explosion? Did a massive wall of water sweep over the property, obliterating all before it? In that case, it is likely that someone not only had taken that second glance, but pulled out his or her cell phone, recorded a video clip, and posted it on YouTube. Check it out. Simply enter the loss date, location and a one-word description into YouTube’s search engine and you may discover valuable evidence that can provide crucial insights into the loss.
It’s that time of year again! On June 9-10, 2011, our very own Richard Bortnick will be co-chairing the 2nd Annual NetDiligence Cyber Risk & Privacy Liability Forum at The Union League, 140 South Broad Street in Philadelphia, PA.
Topics include:
• State of the Cyber Nation
• State and Federal Regulatory Update
• Coverage Analysis: GL vs. Network Security
• Liability Surrounding Social Media Sites and Tools
• Design and Implementation of an Incident Response Plan
• Claims, Claims, Claims: A Privacy Breach Dissected
This is a story about Beverly Stayart and her efforts to sue Yahoo! and other search engines for linking her name to online content that she felt was offensive.
Although this lawsuit is rather striking, the case record does not reveal any particularly striking or unusual facts about Beverly, herself.
She is not a celebrity, or at least, was not one when she started this litigation. She has an M.B.A. from the University of Chicago, she has written a few papers about genealogy research that appear on the internet, and she is passionate about the environment. She is interested in the plight of wild horses, wolves and baby seals and has vigorously protested against their mistreatment. She has published two poems about baby seals on a Danish website.
Like many people, Beverly was curious about what she would find when she put her name into Yahoo’s search engine. To her chagrin, upon running a search of her name in 2008, she discovered that in addition to the expected search results, Yahoo! returned results that linked her name to online pharmaceutical companies promoting sexual dysfunction drugs Viagra, Cialis and Levitra, pornographic websites that contained spyware, and links that directed her to other websites promoting “sexual escapades”.
“A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.” Jean Kerr
A new company out of Dallas, DivorceApps.com, is selling applications aimed at helping people navigate the legal waters of divorce. A Texas family lawyer, Michelle May O’Neil, started the company in March of this year. Two apps currently are for sale on iphones at a cost of $9.99 USD. Applications that are currently available online are described as follows:
(1) Cost and PrepApplication: A system that 1) tracks the information that will be required either by legal counsel or the other side of the case and 2) helps the user track the costs of divorce. For example, the “Divorce Cost” portion of the application provides a scroll down list of categories that enables the user to gain a better understanding of the costs of divorce. The “Scroll Down” component of the application allows the user to scroll through the categories of information to determine the documents and information that will be applicable to their case.
(2) Estate Divider Application: The “Estate Divider” is a system that purports to allow a user to work through the overall division of their Estate. The user can:
I was recently introduced to a great new Scrabble word: “meme”. According to wikipedia, my source for all things “e-”, a meme, in reference to the Internet, is ‘the propagation of a digital file or hyperlink’ that contains content consisting of a saying or joke, a rumor, an altered or original image, a complete website, a video clip or animation, or an offbeat news story, among many other possibilities. In other words, an Internet meme is an inside joke that is shared between a large number of Internet users.
Internet memes have a tendency to evolve and spread extremely swiftly, sometimes going in and out of popularity in just days. They are spread organically, voluntarily, and peer to peer, rather than by compulsion, predetermined path, or completely automated means. The term ‘meme’ can refer to the content that spreads from user to user, the idea behind the content, or the phenomenon of its spread.
Ally McBeal fans may now appreciate the reference to the dancing ‘oogachucka’ baby. In an effort to be a bit more up-to-date in my meme references, I’ve embedded some of them, below. If you’re seeing them for the first time, you may experience the ‘lightbulb effect’ – that is, you’ll actually get the joke behind certain late night comedy skits that just didn’t seem all that funny.
His name is Ghyslain Raza, but you may know of him as “Star Wars Kid”, a portly 15-year-old student at a Quebec private high school who had filmed himself wielding a mock light saber, pretending to be a Star Wars character in combat. The two-minute video was supposed to be private, but he left it lying around at his school where three students, who did not know the teenager, came across the video, posted it on the Internet on April 14, 2003, adding a message inviting people to make insulting remarks about the clip.
Unfortunately for him, it wasn’t just his friends who found the footage so amusing. The video went ‘viral’. One Web log that posted the video was allegedly downloaded 1.1 million times, and by October 2004 one Internet site dedicated to the video had recorded 76 million visits. According to UK marketing firm The Viral Factory, it became the most downloaded video of 2006. So mortified was the teenager that he dropped out of school and finished the semester at a psychiatric ward. According to the student, “It was simply unbearable, totally. It was impossible to attend class.” More than 35 other revised versions of the video clip, created by other people, have found their way to the Internet, with additional sound and visual effects.
This is an extreme but far from unique example of the devastation wrought by cyber-bullying, the term given to internet conduct in which students harass other students by e-mail and on the internet. Given the potentially devastating consequences of cyberbullying, should schools have the power to discipline their students engaging in this form of harmful conduct?
A major issue confronting school boardsis that cyberbullying usually does not take place at school, although its effects can later reverberate among students during school hours. Students may post offensive material from home, or other times outside of school hours, but the targets are fellow classmates. Is it appropriate for a school board to discipline a student for posting such material simply because the postings are being accessed by other students at school or target other students? At the same time, with power comes responsibility – if school boards have the power to discipline students for their behavior outside of school, are schools then to be mandated with the responsibility to essentially monitor and censor the world-wide web? Just how far should a school board’s jurisdiction extend regarding inappropriate off-school student e-conduct?
In this short video, Margaret Gould Stewart, YouTube’s head of user experience, talks about how YouTube works with copyright holders and creators to foster (at the best of times) a creative ecosystem where everybody wins.
Richard Bortnick spoke at the recent NetDiligence Cyber Risk & Privacy Liability Forum in Philadelphia, and afterwards was asked to comment on some of the issues addressed. Here is a discussion of the evolution of the cyber risk insurance market:
Here is an interesting discussion of the definition of “publication” as used in commercial general liability policies’ “personal injury” insuring agreements.
Specifically, on June 1, 2010, the World Intellectual Property Organization (“WIPO”) introduced a free online public resource, “WIPO GOLD” which aims to facilitate universal access to IP information. It promises “quick and easy access to a broad collection of searchable IP data and tools relating to, for example, technology, brands, domain names, designs, statistics, WIPO standards, IP classification systems and IP laws and treaties..” The site also includes a helpful translation option, should users wish to search results in a language other than the default, English. The news report can be viewed here: http://www.wipo.int/pressroom/en/articles/2010/article_0018.html
Meanwhile, the United States Patent and Trademark Office (USPTO) separately announced on June 2, 2010 that it has entered into a “no-cost, two-year agreement with Google to make bulk electronic patent and trademark public data available to the public in bulk form.” Under the agreement, USPTO will provide Google with “existing bulk, electronic files, which Google will host without modification for the public free of charge.” Examples of searchable items include: patent grants and applications; trademark applications and Trial and Appeal Board (TTAB) proceedings; and patent classification information. The USPTO and Google also will work together to make additional data available in the future, such as patent and trademark file histories and related data, the office said. The bulk data can be accessed at http://www.google.com/googlebooks/uspto.html.
In other words, as technology moves forward, so too does the ability to research and guard intellectual property ownership and interests… at least in the Western Hemisphere and other WIPO member countries. Now, if only the remainder of the world could come together to unify owners’ capabilities to globally protect their IP rights.
Jurors are not supposed to look at media coverage of the case during a trial since their verdicts are supposed to based on the evidence presented in a trial, rather than media reports. But can they really resist taking a sneak peek on the Internet?
In February of 2010, the U.K.’s Ministry of Justice released a very interesting report, titled “Are Juries Fair?“, by Professor Cheryl Thomas. Among other things, the study examined jurors’ use of the Internet to look up information about their cases in both long, high profile cases and standard cases lasting less than two weeks, with little media coverage. The report found:
All jurors who looked for information about their case during the trial looked for it on the Internet, as opposed to television, newspapers or some other source. (Well, okay, so this one wasn’t exactly a big surprise…).
More jurors said they “saw” information on the Internet than admitted to “looking for it” on the Internet. Since they were doing something that a judge should have told them that they were not supposed to do, this may explain why jurors were more likely to say the saw reports on the Internet than said they looked for it. (See? Lawyers aren’t the only people in the courtroom who resort to semantics….). But just what are the figures?
Never underestimate the value of a good domain name! As any website owner will tell you, http://www.rose.com, by any other name, is likely to lose customers.
About a week ago, my colleague’s nephew, Kevin Bortnick, found himself in a domain name predicament. His plight is interesting and he has graciously permitted us to blog about his situation, which provides some useful context for a discussion about domain name disputes.
Kevin is a talented website developer who used the name “KBortnick” or “KB” for his internet business. In November of 2005, he registered the domain name kbortnick.com for a period of four years, at a cost of about $10 per year. Although the domain name expired in November, 2009, he explained that “I was moving out & had a bit of a money crunch, so I figured I’d renew it in about a month, because it really wasn’t worth anything & I figured it would be fine….”
A couple of weeks ago, he attempted to re-register the name, only to discover that someone else had purchased it. That unknown ‘someone’ had immediately put it up for sale on a website that auctions off domain names, http://seto.com, subject to a minimum bid of $480. As you can imagine, Kevin was livid. “The highest I’ve ever seen my domain name appraised at was about $30”, he exclaimed, “and most places didn’t even give it that!”
(I empathized with Kevin’s situation. Over Canadian Thanksgiving, while I was sitting before the computer in a state of turkey-induced lethargy, I was suddenly roused from my stupor by the discovery that the domain name “pamelapengelley.com” could be registered for the low, low price of just $10 a year. I may soon write a post that is entitled “How I learned the hard way that just because you can make a hideously tacky personal flash website dedicated to your glorious self doesn’t mean that you should make one.” But I digress…)
Kevin’s dilemma got me thinking – is this what is known as “cybersquatting”? Is there any remedy for this sort of thing? Does Kevin have any recourse?
In fact, there are a couple of different mechanisms for resolving a cybersquatting dispute, and my understanding of them was greatly assisted by some basic knowledge about the development of the Internet and some tech-related acronyms like “DNS”, “IP” and “ccTLD”. If these terms are unfamiliar to you, then I ask for your indulgence while I lay out some of the basic IT background. It’s a bit lengthy so if you are computer-savvy, you may just want to skip part 1. Read the rest of this entry »
Let us say, speaking hypothetically, that a grossly negligent individual (who, since we are speaking hypothetically, is named…”Mr. X”) has accidentally uninstalled my favorite computer game, “Sid Meyers Civilization IV” (for which, by the way, I paid good money and patiently waited three whole hypothetical hours to legally download onto my computer).
Let us further hypothesize that I was twelve hours into a very successful game which has now gone the way of the passenger pigeon. Is the loss of my computer software considered “damage to property” for the purpose of a negligence action, or is it just a form of pure economic loss? “Of course it’s property damage!” I thought to myself, “and a most egregious form at that!”
Yet, in law, as in life, few things are certain. I was compelled to learn more, and so I conducted a brief review of the case law from Canada, the United States and Australia to satisfy my curiosity. What I have learned is that, notwithstanding that we live in the age of the internet, it is far from clear whether we can sue for the loss of electronic data in a negligence action.
We all know that it’s illegal to download and distribute copyrighted digital music without paying for it. But can this sort of file sharing ever constitute “Fair Use”? Why or why not?
Last Monday, as part of our feature on the Top 10 Cyber Law Cases Pending Before Courts Today, we discussed The File Sharing Trials. We mentioned that on December 7, 2009, Judge Gertner of the District Court of Massachusetts issued a decision in Sony BMG Music v. Tenenbaumwhich considered whether a college student’s sharing of digital music for the personal enjoyment of himself and his friends constituted “fair use” of the copyrighted songs. The decision can be viewed Here.
Here’s a quick recap of the facts: the defendant, Joel Tenenbaum, was a college sophomore who was accused of using file-sharing programs like KaZaA to download and distribute 30 copyrighted songs. Tenenbaum’s file sharing was not for profit; it was for his own private enjoyment and that of his friends. He had downloaded songs, but not entire albums of music, and he did not make any changes to the music (i.e., turn them into his own creative work). Unfortunately, he had continued to file share notwithstanding changes in the case law which made it clear that his conduct was not protected, and after digital music was lawfully available (the iTunes Music Store debuted in April 2003, approximately 15 months before Tenenbaum’s computer was detected on the Kazaa network). Justice Gertner concluded that “fair use” was not a defence. Here’s why.
LawPRO Magazine is published by the Lawyers’ Professional Indemnity Company (LPIC), the wholly Canadian owned insurance company that provides mandatory professional liability insurance to lawyers in private practice in Ontario.
In the December 2009 issue, LawPRO Magazine has run a “Social Media” theme, dealing with “Why, What and How to Do It Right”, including an article that sets out a useful summary of Canadian case law on the use of social networking sites in litigation: “Litigation and Online Social Networking Sites“.
Other articles that may be of interest include:
“Social Media: Why?” - An overview of how social media are changing the legal landscape.
“Social Media: What?” – A guide through the many social media tools available PLUS interviews with five lawyers who walk the social media talk.
“Social Media: How?” – A primer on social media as marketing and networking tools in law practice.
“Social media pitfalls to avoid” - A discussion of some of the dangers inherent in using social networking tools, and how to safely exploit the marketing opportunities they do offer.
LawPRO Magazine also offeres a number of technology-related articles with practical information for lawyers and businesses, all of which are freely available online.
“Only one thing is impossible for God: To find any sense in any copyright law on the plant” - Mark Twain.
What Are the File Sharing Trials?
The file sharing trials are copyright infringement actions dealing with the distribution and downloading of digital music. The Recording Industry Association of America (RIAA) is the trade organization that supports and promotes the major music companies. Over the past few years, the RIAA has deployed investigators in cities across North America to track down individuals who pirate digital music, and has brought resulting lawsuits against music fans for sharing music over peer-to-peer networks.
For many people, these cases bring to mind the old saw “but for the grace of God, there go I.” Generally speaking, the RIAA has settled these lawsuits for relatively modest amounts. In a couple of cases, however, the defendants have opted instead to ‘roll the dice’ and go to trial. Under the U.S. Copyright Act, juries have discretion to award damages of anywhere between $750 and $150,000 per copyrighted work, but they are provided with little or no guidance in how damages are to be assessed. As a consequence, these file sharing trials have resulted in jury verdicts for shocking sums of money that would seem to dwarf any actual damages that have actually been suffered by the copyright holders. The fact that these damage awards may be grossly disproportionate to the harm actually incurred has generated constitutional concerns which will likely be tested in the courts in the near future. In particular, two cases have recently received a significant amount of media attention:
But have no fear! Each week, starting on Monday, December 14, 2009, we will feature a comprehensive summary what we believe to be one of the “top ten” cyber law cases currently pending in the courts. Regardless of whether these cases are directly relevant to your business or practice, they raise fascinating issues that are both topical and newsworthy and should serve as some great conversation fodder. Our first post, discussing “The Filing Sharing Trials,” should be posted tomorrow. We would greatly appreciate your feedback and comments.
Remember the good ol’ days of the Commodore 64, back when fluorescent colors were fashionable and “Computer, earl grey…hot” was to boldly go where no one has gone before?
Well, those days are now behind us, and unless you’re one of the stubborn few who still use a phone line to dial into “those newfangled internets”, you have probably heard of Google’s new search by site application, “Google Goggles”.
On Monday, Google announced the launch of a new search engine that allows users to perform an internet search simply by submitting a photograph. Instead of using words, you can take a picture of an object with your camera phone: Google will attempt to recognize the object, and return relevant search results to you. The experimental search-by-sight feature, called Google Goggles, has a database of billions of images that informs its analysis of what’s been uploaded. Vic Gondotra, Google’s vice president of engineering, has said: “It is our goal to be able to identify any image. It represents our earliest efforts in the field of computer vision. You can take a picture of an item, use that picture of whatever you take as the query.” The application is still in a very early stage of development, however, and works best with objects, books, album covers, artwork, landmarks, places, and logos. You can view Google’s video of the application below:
So you want to get production of documents from Facebook to assist you in your civil case. How do you go about it? We asked and Facebook answered.
Well, first off, you are going to need a court order (subpoena) to obtain the information. In the U.S., Facebook users’ data is protected by the Electronic Communications Privacy Act (“ECPA”). See 18 USC section 2701 et. seq. ECPA is a federal statute that prohibits Facebook from producing any “content” without notarized user consent or a Search Warrant. Facebook’s Law Enforcement Response Team has advised that, with regard to civil matters:
State Court Subpoenas must issue from a court within California or must be issued pursuant to the proper California court commission.
Federal Civil Subpoenas seeking the production of documents must issue from the court in the district where the production is to be made.
Facebook states that it requires a $150 processing fee per User ID. Checks can be made payable to Facebook, Inc. and can be sent to the attention of Facebook Security at 1601 S. California Ave., Palo Alto, CA, 94304, bearing the name and number of the case for which the fees are paid.
In addition to a valid subpoena, Facebook advises that as much of the following information as possible should be provided in order to expedite a request:
Your full contact information (name, physical address, phone and email)
Response date due (please allow 2-4 weeks for processing)
Full name of user(s)
Full URL to Facebook profile
School/networks
Birth date
Known email addresses
IM account ID
Phone numbers
Address
Period of activity (specific dates will more likely expedite your request)
It takes Facebook approximately 2-4 weeks to respond to questions from law enforcement agencies or legal representaives about the status of these requests. If Facebook is informed and has a good faith belief that the matter is an emergency regarding potential threat of serious bodily harm or threat to life (see Title 18 United States Code section 2702(b)), they generally respond within 24 hours.
Facebook advises that if you are not a member of a Law Enforcement Agency or Legal Department, you will have to contact Facebook through their Help Page or have your local law enforcement or legal representative contact them. Some other helpful Facebook links are as follows:
A pub owner in the U.K. has been fined £8,000 because someone used its open wireless hotspot to download copyrighted material unlawfully.
The managing director of the hotspot provider The Cloud, Graham Cove, told ZDNet UK that the case, brought in the civil courts, is believed to be the first of its kind in the UK. He would not identify the pub concerned, however, because the pub had not yet given permission for the case to be publicized. Cove did advise that the fine had been levied in a civil case “sometime this summer”. The Cloud’s pubco clients include Fullers, Greene King, Marsdens, Scottish & Newcastle, Mitchell & Butlers and Punch Taverns.
The law surrounding open Wi-Fi networks and the liability of those running them is a grey area. Although copyright owners have brought infringement cases against individuals before in the UK, this case is believed to be the first where the operator of a hotspot – a place where people can buy or get free access to a high-speed wireless internet connection – has been successfully sued.
Based on the facts made known to date, this decision appears to be somewhat anomalous. As Professor Lilian Edwards, a professor of internet law at Sheffield Law School, told ZDNet UK, businesses operating a hotspot for customers or visitors should be “not responsible in theory” for users’ unlawful downloads, under “existing substantive copyright law”. Anomalous or not, however, this must be a real cause of concern for businesses that provide their customers with wireless access (as well as their liability insurers). “You’re probably OK for now in terms of data retention,” Edwards said, “but watch out for the pile of copyright infringement warnings coming your way.”
This decision may have implications for the U.K.’s upcoming and controversial Digital Economy Bill, with measures that could include disconnection of the account holder, and could make matters worse for businesses with open Wi-Fi hotspots. At a wireless hotspot, it is not possible to determine the IP address of an individual who has downloaded infringing material because the IP address that is recorded will be that of the hotspot. A rights holder who seeks to identify an infringer of a copyright is therefore not able to distinguish the hotspot operator from the end user of the downloaded copyrighted material. Referring to the fact that it is currently not yet clear as to whether those facing disconnection would get their chance to appeal before or after being cut off, Edwards said businesses should “lobby for the upcoming Code of Practice to allow an early appeal against [warnings] before rather than after you get disconnected”.
The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. Dow Jones & Company v. Gutnick, a 2002 decision of the High Court of Australia, was the first case to reach a final court that considered the nature of defamation on the Internet. Dow Jones, a US company, allegedly defamed an Australian businessman in an article on the Internet. Dow Jones argued that the suit should be heard in the US, not Australia, because that is where the article was uploaded. They argued that the Internet, being such a revolutionary development in communications, deserved a new legal response; that the High Court should develop a global theory of defamation liability. The High Court declined to do so, holding that long-established principles of Anglo-Australian defamation law were applicable to online defamation. Canada appears to have followed suit.
The consequence is that regardless of whether online defamatory material has been posted and hosted in the United States, case law developments with respect to internet defamation in foreign jurisdictions may be quite relevant in determining the liability of a U.S. resident for posting defamatory content.
In actions for libel and slander, “publication” refers to the communication of defamatory material to a third person. Does hyperlinking to a website containing defamatory material amount to publication of that material in the eyes of the law?
This was the issue that was recently considered by the B.C. Court of Appeal in the case of Crookes v. Newton, the first case at the appellate level in Canada to consider whether the creation of a hyperlink to a site that contains defamatory material can make the creator liable for the defamatory material. The plaintiff, Mr. Crookes, claimed that he was defamed in various articles that first appeared on the Internet in 2005. The defendant, Mr. Newton, put up a post on his website under the heading “Free Speech in Canada”, and inserted hyperlinks to webpages that contained the defamatory articles. Significantly, Mr. Newton did not reproduce any of the content from the articles, nor did he comment on them in any way. The relevant post excerpt (hyperlinks omitted) is as follows:
Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future.
When Mr. Crookes learned of the post, he asked Mr. Newton to remove the hyperlinks, but Mr. Newton refused. Mr. Crookes then sued Mr. Newton, taking the position that by creating the hyperlinks, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Newton brought a motion for summary judgment, arguing that that Mr. Crookes could not prove that the hyperlinks were brought to the attention of a third party and therefore “published”. Mr. Crookes was able to prove that Mr. Newton’s site had been accessed 1,788 times, but he could not prove whether any visitors to the site had ever clicked on the hyperlinks leading to the webpages containing the defamatory articles.
Mr. Crookes argued that there should be an automatic presumption of publication of the hyperlinked articles – such a presumption exists with respect to defamatory content in newspapers or broadcasts to the general public through the operation of ss. 2 and 12(2) of British Columbia’s Libel and Slander Act which provides:
s. 2. Defamatory words in a broadcast are deemed to be published and to constitute libel.
s. 12(2). The publication of a printed copy of a newspaper is proof, in the absence of evidence to the contrary, of the publication of the printed copy.
The Court refused to apply such a presumption, holding that since there is no such statutory provision in Canada providing for the presumed publication of communication distributed through the internet, it should be up to the Legislature, rather than the courts, to create such a presumption. Nor would the majority of the Court infer publication from the fact that Mr. Newton’s site had received 1,788 “hits”. Justice Saunders, speaking for the majority, noted that there was no evidence adduced with respect the volume of “hits” here compared to the norm, the usual behavior of internet readers or “surfers” or the jurisdiction in which they resided. As a result, there was insufficient information on which to infer that the hyperlinks had been accessed at all, let alone by Canadian viewers.
The court concluded that the mere fact that Mr. Newton hyperlinked the impugned sites did not make him a publisher of the material found at the hyperlinked sites. The Court referred to the 2005 case of Carter v. B.C. Federation of Foster Parents Assn., where it had held that a reference to a website in a printed newsletter, where there was no element of control by the defendant over that website, did not amount to publication of the defamatory material found at that site. In that case, a group of defendants had prepared a written newsletter which contained an internet address for an internet chat room which posted defamatory material, with the comment that “more news” could be found at that address. The Trial judge found that the reference in the written newsletter did not in the circumstances amount to publication by the Federation of the defamatory materials found at that site.
In this case, Mr. Newton advised that he saw the hyperlinks “as the equivalent of a footnote or biographical reference”, and the majority of the Court of Appeal agreed. The majority of the court found that there was no substantial difference between referring to a web address in a written article and a mere hyperlink; both required a decision on the part of the reader to access another website, and both required the reader to take a distinct action. Further, in this day of rapidly changing technology, the court was not persuaded that it would take any less effort to access a hyperlink than a web address in an article. Thus, according to the majority, if it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then this would not amount to publication. However, the footnote analogy is not a complete answer to the question. If a hyperlink served as an invitation or encouragement to view an impugned site, or in some way adopted a portion of its contents, the hyperlink could be defamatory. For example, a statement that “The truth about [Person X] is found here, where “here” is hyperlinked to defamatory content may be sufficient to constitute defamation. Thus, the issue of whether a hyperlink promulgates defamatory content will require a contextual, fact-specific analysis.
(Of course, therein lies the rub. The majority of the Court did not see encouragement in Mr. Newton’s post, likening the links to a footnote for a reader or card index in a library. The dissenting judge was of the view that the context of the post served as an inducement to readers to click on the hyperlink).
“Phishing” refers to the fraudulent process of attempting to acquire sensitive information such as usernames and credit card details by masquerading as a trustworthy entity by way of e-mail, instant messaging or some other electronic communication. The communciation will often directs users to enter details at a fake website that is almost identical to the legitimate one.
To illustrate, in a recent example of spear-phishing launched from a web server in China, CEOs received an email message purporting to be from a federal court stating that a subpoena was being directed to the CEO with a link to a web address ending in “uscourts.com”. More than 1,800 CEOs clicked on the link. Once the victims arrived at the bogus site, they were asked to view court documents by downloading a browser plug-in, which was actually malware used to gain access to the victim’s computer.
On November 17, 2009, the FBI issued a cyber advisory warning that hackers appear to be targeting law firms and public relations firms. Here’s a not-so-clever example:
Subject: Attn: Pamela Pengelley
Alexander JLO – Solicitors
11 Lanark Square
Glengall Bridge
London E14 9RE
United Kingdom.
TEL:+44 794 4145 981
Fax:+44 794 4416 262
Good day: Pamela,
This is a personal E-mail directed to you and I request that
it be treated as such.
I am Barrister Wilson Baker, a solicitor at law. I am the personal attorney/sole executor to the late Engr Gerald Pengelley herein after referred to as’my client’ who worked as an independent oil magnate in my country and who died in a plane crash with his immediate family in December 2003.
Since the death of my client, I have written several letters to the embassy with an intent to locate any of his extended relatives whom shall be claimants/beneficiaries of his abandoned personal estate and all such efforts have been to no avail.
More-so, I have received official letters in the last few weeks suggesting a likely proceeding for confiscation of his abandoned personal assets in line with existing laws by the bank in which my client deposited a notably high amount of money.
On this note i decided to search for a credible person and finding that you bear a similar last name, I was urged to contact you, that I may with your consent, present you to the “trustee” bank as my late client’s surviving family member so as to enable you put up a claim to the bank in that capacity as a next of kin of my client.
I find this possible for the fuller reasons that you bear a similar last name with my client making it a lot easier for you to put up a claim in that capacity.
I propose that 35% of the net sum will accrue to you at the conclusion of this deal in so far as I do not incure further expenses.
Therefore, to facilitate the immediate transfer of this funds, you need, first to contact me via my private email:(wilsonbaker3@yahoo.co.uk) for better confidentiality, signifying your interest and as soon as I obtain your confidence I will immediately appraise you with the complete details as well as fax you the documents, with which you are to proceed and i shall direct you on how to put up an application to the bank.
However, you will have to accent to an express agreement which I will forward to you in order to bind us in this transaction.
Upon the receipt of your reply,I will send you by fax or E-mail the next step to take.I will not fail to bring to your notice that this proposal is hitch-free and that you should not entertain any fears as the required arrangements have been made for the completion of this transfer.
Like I said, I require only a solemn confidentiality on this.
Best regards,
Wilson Baker Esq
A word to the wise – proceed with caution before clicking on a link in an e-mail, even if the message appears to be from a reliable source. Better to seek confirmation from your information systems resources than fall victim to a spear-phishing scam. For more information, check out Microsoft’s webpage, “How to Recognize Phishing Emails and Links”.
On November 10, 2008, millions of people were left without electricity in two of Brazil’s biggest cities, São Paulo and Rio de Janeiro, as a result of a massive power failure. The outage also had a significant impact on telecommunications and the Internet routing system in a number of South American regions. According to CircleID Reporter, while Brazil took the largest hit, Paraguayan and Uruguayan networks also went out “as a result of the largest regional power outage to hit Brazil and its neighbors in several years.”
The losses arising from these types of outages can staggering. Recall in early July of 2008, when the network of Brazilian unit of Spanish telecom Telefónica (NYSE: TEF) was disrupted, leaving its 2.2mn Speedy broadband customers without internet access for about 36 hours in the state of São Paulo. According to Business News America, Zurich had said that it would set aside 24mn reais (US$15.2mn) for refunds to compensate for the service interruption.
Prompted by the internet losses, the Brazilian unit of Swiss insurer Zurich began offering a new civil liability insurance product in August of 2008 in the wake of a large-scale internet outage, reported the local financial daily Gazeta Mercantil. The product covers third-party damage and operational shutdowns resulting from service disruptions, according to the report.
According to Zurich Brasil’s financial insurance lines executive ,Vinicios Villela Jorge, “Many businesses were wanting to know whether the insurance market would make this type of product available so that they could require [clients] to get this policy when contracting their services.” It will be interesting to see whether new insurance products become available on the market as a result of this most recent network failure.
A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders
Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage. The particulars of the decision are set out in detail, below.
The plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.
The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining (she was not engaged in any activities in relation to which she claimed to be impaired).
The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking anInterim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:
INTERIM ORDER FOR PRESERVATION OR SALE
45.01 (1) The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).
(2) Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).
The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Proceduresets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).
Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.
Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:
101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)
Terms
(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).
In considering whether to grant the interlocutory injunction, Justice Price applied the test set out by the Supreme Court of Canada inR.J.R. Macdonald Inc. v. Canada (A.G.):
1.) Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.
2.) Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:
I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant.
3. Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:
The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.
The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.
As a result of the foregoing, the Court concluded:
The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.
The Court did decide, however, that ”[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.
According to an interesting article posted by Shaunna Mireau, ‘Substitutional Service via Facebook in Alberta’ on Slaw, on February 5, 2009 Master Breitkreuz ordered in Knott v. Sutherland that the plaintiffs could substitutionally serve one of the multiple defendants by publication of a notice in the newspaper, by forwarding a copy of the statement of claim to the human resources department where the defendant (formerly) worked, and also by sending notice of the action to the Facebook profile of the defendant. Precedent for service in civil matters via Facebook exists from Australia and New Zealand, but has not been previously been allowed in Canada.
The Order can be cited as: This order can be cited Knott v. Sutherland (5 February 2009), Edmonton 0803 02267 (Alta. Q.B.M.)
A British Columbia Court agreed that a plaintiff’s late night computer usage on Facebook was relevant to his claim that he was unable to work. The Court ordered production of his computer hard drive to determine the period of the time he spent on Facebook between 11 p.m. and 5 a.m.
In Bishop v. Minichiello, [2009] B.C.J. No. 692 (S.C.J.), the plaintiff alleged that a brain injury caused him ongoing fatigue which prevented him from being able to maintain employment. The defendant brought a motion to obtain production of the plaintiff’s hard drive of his family computer so that he could have it analyzed in order to determine the periods of time that the plaintiff spend on Facebook between 11 p.m. and 5 a.m. each day. The defendant argued that the plaintiff’s late night computer usage was relevant to the lawsuit; the plaintiff had told a doctor that he spent a substantial amount of time on Facebook chatting with his friend late at night, and that his sleep varied with the time that his friend went to bed.
On examination for discovery, the plaintiff’s mother had confirmed that the plaintiff was the only person using the family computer between those hours. The plaintiff argued that, at times, his friends could use the computer once he logged into Facebook, and that the hard drive contained information that was irrelevant to the litigation and so should not be produced. Justice Melnick noted, however, that simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose all relevant information. The Court concluded:
Facebook login/logout records are documents stored in electronic form for the purpose of litigation;
The information sought by the defense could have significant probative value in relation to the plaintiff’s past and future wage loss;
The value of production was not outweighed by confidentiality, or time and expense required to produce the documents; and
The order sought was so narrow that it did not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.
Given that not all of the information on the hard drive was relevant, and that privacy issues of other family members might be implicated, the Court ordered that an independent expert was to review the hard drive and isolate and produce the relevant information for the defendant’s counsel.
A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her MySpace emails; if this woman was looking for extra-marital affairs on MySpace, this might speak to her credibility. The judge refused.
In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two MySpace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.
The defendant’s lawyer obtained a subpoena directing MySpace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, MySpace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.
The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two MySpace accounts as creating an inference that the plaintiff was using MySpace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through MySpace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.
The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on MySpace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:
Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s MySpace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.
The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.
No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant. For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.
In December 2008, after several failed attempts to serve a couple with court documents by email and text messaging their mobile phones, an Australian lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendants’ Facebook “Wall”. In a ruling that appears to be the first of its kind anywhere in the world, Master Harper of the Supreme Court of the Australian Capital Territory held that the lawyer could use the social networking site to serve court notices.1 The Facebook profiles showed the co-defendants’ dates of birth, email addresses and ‘friend’ lists and declared the co-defendants to be friends of one another. This information was enough to satisfy the Master that Facebook would be effective in bringing knowledge of the legal proceedings to the attention of the defendants.2 Facebook, for its part, was quite happy with the result, stating: “We’re pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication. The ruling is also an interesting indication of the increasing role that Facebook is playing in people’s lives.”3
There is no doubt that Facebook4 is now playing an increasing role in people’s lives. For the few who are unfamiliar with the application, Facebook is a non-commercial “social website” or, as put by its Terms of Use, “a social utility that connects you with the people around you.”5 The site’s “Facebook Principles” state that a user may “set up a personal profile, form relationships, perform searches and queries, form groups, set up events, add applications and transmit information through various channels.”As of June 2007, Facebook had more than 70 million active users, and users over the age of 25 made up its fastest growing demographic.6 If you have a computer, the odds are good that you are one of the now over 140 million people who have posted personally sensitive information onto Facebook or a similar social network site such as Myspace,7Faceparty,8Friendster,9Bebo,10 Badoo,11Habbo,12Nexopia,13Tagged14 and many more.15 If you are a typical user, you network with friends, upload photographs of yourself and your family members, enter your email address and cell phone number, and much more.16
Facebook asserts that this information is “secure and private” and it is possible for a user to adjust their privacy settings to restrict access to a Facebook site. Yet it was just a few weeks prior to the writing of this article that Facebook backed down (for now) following a firestorm of protest regarding a change in its “Terms of Use” to claim ownership over user-generated content in perpetuity even after someone closed or cancelled their account.17 For insurance professionals who handle claims that proceed to civil litigation, this then begs the question; how does a user’s expectation of privacy play out in the litigation context?
Consider that a fully filled-out Facebook profile contains over forty pieces of recognizably personal information, including name; birthday; educational and employment history; online and offline contact information; sex; sexual preference and relationship status; political and religious views; favorite movies, books and music, and of course, pictures.18 Facebook is the largest photo-sharing application on the web with more than fourteen million photos uploaded daily. Facebook further offers multiple tools for users to search out and add potential contacts. In completing a typical Facebook profile, a person will have created a comprehensive database of information about both who they are and who they know.19 This is, for the most part, information that our laws treat as highly private. Not surprisingly, then, courts are struggling to define how the plethora of private information contained in social network websites should be used in litigation. Should a person’s choice to keep their Facebook profile private and share it only with selected “friends” override the right of other litigants to access information that may be relevant to a case?
For professional “fact-gatherers” such as lawyers, insurance adjusters, claims handlers and private investigators, the vast wealth of information that people volunteer on Facebook can be a goldmine or a smoking gun, depending on your perspective. The personal information contained in a Facebook profile may be highly relevant to matters at issue in litigation; when dealing with claims, particularly in the personal injury context, the information contained on a Facebook page can make or break a case. It is therefore crucial that insurance professionals stay informed of new developments in this emerging area of law. This article summarizes the approach currently adopted by Canadian courts.
FACEBOOK AND THE LITIGATION PROCESS
It is important to understand that litigation is a fact-gathering process. In , our procedural rules of litigation facilitate this process in two ways. First, courts place a positive obligation on each party to identify all of the documents in their possession or control that may be “relevant” to issues in the litigation, and to produce each such document unless privilege is claimed over it.20 Second, lawyers are allowed to question a representative of each adverse party under oath – a process referred to as “examination for discovery”. The purpose of these processes is to uncover the facts of a case so that the law can be properly and fairly applied.
How does Facebook fit into these processes? Canadian courts have considered web-based networking sites such as Facebook and MySpace pages to be ‘documents’. If a party posts content on Facebook that relates to any matter at issue in an action, then that party is required to identify the content for the other side.21 In fact, a recent Ontario decision has held that it is now incumbent on lawyers to specifically raise the issue of Facebook profiles with their clients and explain that any relevant material that is posted on such sites will need to be produced in litigation.22
It sometimes happens though, that relevant documents are overlooked or omitted. Facebook profiles are often among these overlooked documents. As noted by one judge, “[t]he concept of Facebook is relatively new. I see no fault on the part of counsel for the Plaintiff for not disclosing the existence of the Facebook page in the Affidavit of Documents. I suspect that when this action was filed in 2004, few people had heard of Facebook.”23 In such instances, here the privacy setting on a Facebook profile has been set to allow public access, few issues arise; anyone who learns of the site can search for and download any relevant information. Problems arise, owever, where access to a Facebook page has been restricted.
Public Facebook Profiles
A number of cases in Canada have already admitted photographs or other information posted on a public Facebook page as evidence relevant to issues raised in the litigation.24 In one case, the discovery of photographs of a party posted on a MySpace page was the basis for a request to produce more photographs that were not posted on the site.25
In Kourtesis v. Joris,26 the plaintiff claimed that, following a car accident, she was unable to engage in Greek dancing, an activity that she had previously enjoyed. During the course of trial, but after the plaintiff had testified, a member of the defence lawyer’s staff happened across the plaintiff’s private Facebook page showing post-accident pictures of her dancing at a party. The lawyer attempted to put these pictures into evidence. In deciding what to make of the photos, the judge decided that the photographs, as “snapshots in time” and “taken out of context,” had only minimal evidentiary weight, but they were still “highly relevant” to the assessment of damages regarding the plaintiff’s claim for loss of enjoyment of life. Further, the photographs were not on the same footing as surveillance photos because, unlike surveillance photos, the plaintiff had control of the photographs on her Facebook site and so she could not be surprised by their existence and content. Finally, the mere fact that the photographs were contrary to the plaintiff’s evidence at trial did not make them “prejudicial”. The judge held, however, that the plaintiff should be permitted to be recalled at trial so that she could have the opportunity to explain them.
Private Facebook Profiles
Canadian courts have mechanisms in place to monitor compliance with the disclosure duty. Where a party has reason to believe that another party has not complied with these disclosure obligations, he or she can ask the court to order disclosure of the documents. However, a court can refuse to order the disclosure of documents where the information is of minimal importance to the litigation but may constitute a serious invasion of privacy.27 A private document is, quite simply, any document that is not public, and includes private Facebook profiles.28 This creates a dilemma for a party seeking production of a private Facebook page: in order for a court to order production of a document, a court requires evidence, as opposed to mere speculation, that a potentially relevant undisclosed document exists. Yet a party is unable to access a private Facebook site in order to determine whether it contains relevant information.
To date, there are two cases in which have dealt with the production of the access-limited contents of a Facebook profile. The first case, Murphy v. Perger, is a decision of Justice Rady issued in October of 2007.29 In that case the plaintiff, Ms. Murphy, was involved in a car accident which, she alleged, caused her to suffer from a chronic pain disorder. She sued the other driver, seeking damages for the detrimental impact on her enjoyment of life and her inability to participate in social activities. Shortly before the trial, the defendant’s lawyer discovered a public website called “The Jill Murphy Fan Club” which contained post-accident pictures of Ms. Murphy at a party. This public webpage led the lawyer to Ms. Murphy’s private Facebook page. The lawyer was able to view Ms. Murphy’s name and a list of her 366 Facebook “friends”, but she had set the privacy settings so that permission was required to view her other Facebook material. The defendant’s lawyer sought production of the Facebook pages (but not the Facebook emails) on the basis that it likely contained relevant information. The plaintiff’s lawyer objected, claiming that the defendant was on a “fishing expedition” because there was only a mere possibility of there being relevant material on the site, and that this was too speculative to justify an order for production given the plaintiff’s expectation that the site would be kept private.
The judge disagreed with the plaintiff’s argument and ordered the Facebook pages to be produced. He concluded that it was reasonable to assume that there would be relevant photographs on the site because www.Facebook.com is a social networking site where a large number of photographs are posted by its users. Since the plaintiff had already put preaccident pictures of herself into evidence, the judge decided that post-accident pictures of the plaintiff would also be relevant. Finally, the judge decided that the plaintiff could not have any serious expectation of privacy given that 366 people had already been granted access to the private site.
The second case to consider this issue is Leduc v. Roman, in which a decision of a Master was appealed to Justice Brown.30 The plaintiff, Mr. Leduc, was involved in a car accident which, he claimed, caused him to suffer various ailments and loss of enjoyment of life. Mr. Leduc underwent a psychiatric medical evaluation and told the defendant’s expert psychiatrist that he did not have a lot of friends in his current area, although he had “a lot of Facebook friends.”This remark apparently went unnoticed by the defence lawyer, for it was not until after Mr. Leduc had been examined for discovery that the defence lawyer’s office was conducting a search of Facebook and discovered that Mr. Leduc had a Facebook account. His publicly available profile showed only his name and picture. Because Mr. Leduc had restricted access to his site to only his Facebook friends, the defence lawyer’s office was unable to view the site.
The defence lawyer requested an up-to-date affidavit of documents from the plaintiff’s lawyer including the Facebook profile. When this was refused, the defence lawyer brought a motion before the court seeking, among other things, (1) an order requiring Mr. Leduc to preserve all the information on the Facebook profile; and (2) production of the Facebook profile itself. Mr. Leduc’s lawyer argued that it would be too speculative to infer that relevant material was posted on his Facebook site merely by proving the site’s existence. He sought to differentiate his case from that in Murphy. In that case there was a public website that posted relevant pictures of the plaintiff, creating a reasonable inference that there was also relevant material on her private Facebook page. In this case, there could be no such inference.
When the matter had first been argued, the Master had granted the preservation order, but had refused to order production of the Facebook profile, holding that the request was a fishing expedition. Justice Brown disagreed. He was of the opinion that a court can infer from the social networking purpose of Facebook that users intend to take advantage of it to make their personal information available to others. He stated:
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; 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.
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 at issue 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.
Justice Brown noted that mere proof of the existence of a Facebook site would not entitle a party to gain access to all of the material placed on that site. Some material on the site might be relevant to the action, some might not. In order to gain access to this material, the level of proof required to show that the information may be relevant should take into account the fact that one party has access to the documents and the other does not.32 Judge Brown also noted that a defendant would normally have the opportunity to ask about the existence and content of a Facebook profile during the examination for discovery, and where the answers reveal that the Facebook page may contain relevant content, a court can order that those portions be produced.
Facebook Emails
No Canadian case to date considers a request for the production of Facebook emails. It is likely that Facebook emails will be treated differently than the other information on a Facebook profile; the profile is viewable by all a user’s “friends” whereas email is not. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Facebook email communications. For this reason, a court may not be able to infer from the nature of the Facebook service the likely existence of relevant email communication. That being said, it seems likely that if there is enough evidence in a Facebook profile itself to suggest that email communications may be relevant and probative, this may be sufficient to convince a court to order disclosure.
CONCLUSION
It is important to note that lawyers’ rules of professional conduct strictly prohibit them from making direct contact with parties who are represented by counsel, and this certainly includes contact by way of Facebook. It would be a breach of a lawyer’s duties of honesty and candor to create a false profile in an attempt to elicit information from another party’s private Facebook profile. Similarly, adjusters, private investigators, and claims handlers should be aware that attempts to elicit Facebook information through surreptitious means would likely not be looked upon favorably by a court and may constitute a breach of Facebook’s Terms of Use. Consider the case of Knight v. Barrett.33 In that case, it was unclear how a party had obtained information from another’s private Facebook profile, so the court ordered the party who had obtained this information to include it in their affidavit of documents, and allowed cross-examination on that affidavit so that it could be determined how they had obtained the information. The judge stated that such disclosure would allow both parties to prepare for trial in the same light, and that it was not appropriate for the defendants to seek to ambush the plaintiff with his or her own Facebook page. With this cautionary tale in mind, a number of salient points should be taken from the cases referred to above:
Where a party’s personal information is relevant to an action, insurance professionals should be cognizant of the potential wealth of relevant information available on the Internet. Internet searches, including “Google” searches and searches of common social network websites should be commenced as soon as possible in the course of adjusting the claim. Follow-up searches should be commenced at regular intervals thereafter.
The current case law suggests that many a lawyer has been surprised to learn that his or her own client maintained a Facebook page, and this fact was not brought to their attention until very late in the litigation. Thus, internet searches should be performed not just on opposing parties, but also on one’s own insured/client.
Insurance professionals should ensure that their insured understands that Facebook profiles are producible “documents”, and that any relevant content that is posted on a Facebook profile will need to be disclosed, and preserved in order to avoid spoliation issues.
Facebook pages are dynamic – where relevant material is discovered, this material needs to be preserved. Webpages should be downloaded, saved and dated. High-quality colour copies of these pages should be printed out for future use in litigation.
Depending on the circumstances, it may be prudent to obtain a preservation order respecting the content of a Facebook page or other social network profile – for this reason, it is highly recommended that a lawyer who is experienced in these matters be consulted and involved early on in the investigative stage of a claim.
As observed by Mitchell Kapor, the pioneer of the personal computer revolution, “getting information off the internet is like taking a drink from a fire hydrant. ”The Internet is transforming the way we share and disclose personal information. In order for insurance professionals to obtain optimal results in litigation, be it a subrogated, defence or coverage action, it is important to be aware of the vast amount of potentially relevant information available online, and to stay alert for new developments in web-based technologies. If you have not heard of blogs, Twitter, Flickr, Internet communities, Wikipedia, cyber mobs, and other current trends, you are already “out of date” and could be missing out on key sources of relevant information. Cyberspace awaits – boldly go.
Footnotes
1. This appears to be an unreported decision, although the details are provided in a number of online articles. The defendants, Carmel Rita Corbo and Gordon Kingsley Maxwell Poyser failed to keep up the repayments on $150,000 they borrowed from MKM in 2007 to refinance the mortgage on their Kambah townhouse. It seems that the news of the default judgment got out before the lawyer, Mr. McCormack, had the opportunity to serve the papers. The couple’s Facebook profiles disappeared from the social networking site. See: “Facebook okay for serving court documents: Australian Court,” National Post (Wednesday, December 17, 2008) http://www.nationalpost.com/news/world/story.html?id=1084050; Rod McGuirk, “Aussie Court OKs Using Facebook for Serving Lien,” ABC News (December 16, 2008) http://abcnews.go.com/International/wireStory?id=6470258; Bonnie Malkin, “Australian couple served with legal documents via Facebook,” Telegraph (December 16, 2008), http://www.telegraph.co.uk/news/newstopics/howaboutthat/3793491/Australiancouple-served-with-legal-documents-via-Facebook.html.
20. A party is required to prepare a list all the relevant documents, although the precise nature of the list will depend on the province. For example, in Ontario, the list of documents must be set out in an affidavit sworn by the party: Rule 30.03, Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
23. Knight v. Barrett, 2008 NBQB 8 (CanLII) at para. 7 [“Knight”].
24. For example, Hollingsworth v. Ottawa Police Services Board, [2007] O.J. No. 5134 (S.C.J.) (A plaintiff’s entry on his Facebook page wherein he described how he became intoxicated on public occasions was used to contradict his claim of unlawful arrest); Pawlus c. Hum, [2008] J.Q. No. 12565 (J.C.Q.) (A landlord terminated a lease because of loud noises. The apartment would, on occasion, become a “fraternity house”. In reaching the conclusion that the tenant did not fulfill his obligation as a renter, the Board examined evidence which included pictures published on the Fraternity’ Facebook site). See also Goodridge (Litigation Guardian of ) v. King, [2007] O.J. No. 4611 (S.C.J.); (C.M.) v. R (O.D.), 2008 N.B Q.B. 253.
25. Weber v. Dyck, [2007] O.J. No. 2385 (S.C.J.).
26. [2007] O.J. No. 5539 (S.C.J.) [“Kourtesis”].
27. United Services Funds v. Carter (1986), 5 B.C.L.R. (2d) 222 (B.C.S.C.), leave to appeal dismissed (1996), 5 B.C.L.R. (2d) 379; M.(A.). v. Ryan (1994), 98 B.C.L.R. (2d) 1 B.C.C.A., aff’d [1997] 1 S.C.R. 157.
28. Leduc, supra, note 6.
29. Murphy, supra note 21.
30. Leduc, supra note 6.
31. Ibid, at paras. 31-32 & 35.
32. R.C.P. Inc. v. Wilding, [2002] O.J. No. 2752 (Master) at para. 12., Leduc.
A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter.com during the trial that show he’s biased against them.
The motion seeking a new trial was filed Thursday on behalf of Russell Wright and his company, Stoam Holdings. It claims juror Johnathan Powell sent eight messages — or “tweets” — to the micro-blogging Web site via his cellular phone. According to the motion, one posting listed the company’s Web address and read in part: “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.” Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” You can view Johnathan’s twiittering at this LINK.
In his motion, filed in Washington County Circuit Court in Fayetteville, lawyer Drew Ledbetter wrote that the messages show Powell “was predisposed toward giving a verdict that would impress his audience.” Powell, of Fayetteville, told The Associated Press on Friday that Wright and his lawyers are “just grasping at straws at this point.”
“I didn’t really do anything wrong, so it’s kind of crazy that they’re trying to use this to get the case thrown out,” Powell said. “I understand where they’re coming from, they lost over $12 million.”
The jury awarded the money Feb. 26 to Mark Deihl and William Nystrom, two northwest Arkansas men who invested in Wright’s company. The company sold a building material called Stoam that it claims combines the insulation qualities of foam with the strength of steel. Deihl’s attorney, Greg Brown, called the venture “nothing more than a Ponzi scheme.”
Brown said he doubts a new trial will be granted. He said Arkansas law requires defendants to prove that outside information entered the jury room and corrupted a verdict — not that information from the jury room made its way out.
Powell, a 29-year-old manager at a Wal-Mart photo lab, said he tried to talk to the judge Friday about what happened, but was turned away. He seemed a little shocked at what kind of power the 140-character messages on Twitter can carry. “I’m kind of surprised so many people have contacted me,” he said.
We are pleased to announce that Cyberinquirer is among the group of initial nominees for the Top Insurance Law Blogs of 2011! 
Let us say, speaking hypothetically, that a grossly negligent individual (who, since we are speaking hypothetically, is named…”Mr. X”) has accidentally uninstalled my favorite computer game, “Sid Meyers Civilization IV” (for which, by the way, I paid good money and patiently waited three whole hypothetical hours to legally download onto my computer). 
The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. 
