The measure of effectiveness of a CEO and its executive board has always been the degree to which the business is achieving its purpose. Whether in Canada, the U.S., Europe or Asia, an executive board’s purpose should be to increase shareholder value, a purpose that is best accomplished by serving the needs of various stakeholders. Somewhere in the pyramid of stakeholders is the consumer or client, whose likes, favorites, and preferences must be met with quality personalized products and services that deliver high competitive value. In an interconnected global knowledge economy, this has meant listening to what consumers are saying online through social media platforms like Facebook and Twitter, and engaging in two-way conversations to respond in real-time to consumer demands.
The recent decision The Queen v. Cole by the Supreme Court of Canada touches upon interesting issues regarding information privacy in the digital age.
The facts are simple. An information technologist working at the same high school as Mr. Cole, a teacher, remotely accessed Cole’s history of internet access and one of his drives and found a hidden file which contained nude photographs of a student. The photographs and internet file were copied onto a disc and given to the police, which determined that a search warrant was unnecessary. Cole was subsequently charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded the computer material under Sections 8 and 24(2) of the Charter. In overturning the decision, the summary conviction appeal court found no breach of Section 8. This decision was set aside by the Ontario Court of Appeal, which concluded that the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image was excluded. A 6-1 majority ruling by the Supreme Court concluded that the police infringed upon Cole’s rights but upheld the Court of Appeals’ finding that the evidence should not have been excluded from trial.
We would like to thank our colleague, Jordan Fox for his invaluable assistance in researching and drafting this article. Jordan is an associate in Cozen O’Connor’s Commercial Litigation Department in Philadelphia and can be reached at jfox@cozen.com. In turn, Tom Wilkinson currently serves as President of the Pennsylvania Bar Association and is co-editor of the Pennsylvania Ethics Handbook, a comprehensive review of the rules of conduct governing lawyers, with extensive citations to case decisions and ethics opinions addressing all aspects of lawyer-client relationships. Tom can be reached at twilkinson@cozen.com.
Thanks guys!
Rick
As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.[1] In the common scenario, a party observes information on the public portion of their adversary’s profiles that tends to undercut that adversary’s claims—such as pictures of a plaintiff skiing after claiming to have devastating injuries—and present such information to the court as the “factual predicate” that establishes the potential relevance of the private profile.[2] While most courts will not allow a party to simply conduct a “fishing expedition” into their adversary’s private digital lives, nor will they declare such information categorically undiscoverable.[3]
For those captivated by recent events in astronomy, parallels can be drawn between the recent landing of NASA’s rover Curiosity on planet Mars and the public discourse on data security in Canada. With the distinction that one is effectively equipped with the right budget and tools to achieve its actual objective, both have come a very long way, both have managed to blaze through layers of clouds, both seek to secure ingredients essential to life, and both are now aimlessly wandering about unchartered territories.
A decisive factor in Barrack Obama’s 2008 political campaign was the extensive use of individual, thin sliced consumer data to send highly tailored messages to gain political support. Within 13 years, Google has become the most valuable brand in the world through the aggregation of vast amounts of data including search data, or data held in Gmail accounts. This information is then used to create an advertising cruise missile, which is much more efficient than the old method of pattern bombing.
It is amazing how fast a legislative body can act when it wants to. Just last week, Governor Martin O’Malley of Maryland signed the country’s first law restricting employers’ ability to demand social media account information from applicants and employees. Maryland was the first to propose this type of law, and is now the first to enact it.
The Maryland law takes effect on October 12, 2012, and contains the following highlights:
Cloud computing is the storage of data on remote computer servers and the sharing and transmittal of such information by way of the internet. Use of the cloud enables both businesses and casual users to maintain as much or as little electronic data as they wish on a third party’s mainframes without the need for or the expense of having to buy and maintain their own hardware systems.
The cloud’s economic benefits are clear. Still, clouds can be a legal minefield for companies and their counsel. Data breaches, hosting of illegal content and inaccessibility of critical business information are just a few examples of turbulent situations cloud users can face.
Given the risks and potential rewards of the cloud, consider the following guide before entering into a cloud provider contract:
The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike.
Two weeks ago, I discussed the California case of PhoneDog v. Kravitz, where an employee, who used a company Twitter account as part of his job duties, left the company and continued to use the same Twitter account and tweet to the same followers. The (former) employee claimed that he had the right to continue tweeting, and PhoneDog responded that he was barking up the wrong tree (best I could do at the moment). As I mentioned in my last post, the court had denied the employee’s attempt to dismiss the entire case at inception, and allowed the company to amend its complaint to provide more specificity on some of its claims. Time for an update.
The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.
Rick Bortnick
Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.
Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.
In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.
The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike.
What would you do if your employee continued to use your company’s Twitter account after he stopped working for you?
What if your (former) employee claimed that he, not your company, actually owned the rights to the Twitter followers?
Ever thought about it?
I have posted several times about how social media has not created new causes of action, but rather has provided a new application for traditional claims. One of the areas that I surmised would develop in time was the interplay between social media and post-employment competition and trade secret rights. According to two new decisions, that time has apparently come.
In PhoneDog v. Kravitz (Northern District of California), the company gave its employee (Kravitz) use of a Twitter account as part of his employment. Kravitz tweeted information to promote the company’s services, and generated approximately 17,000 followers. Kravitz left the company, and, while he changed the account “handle”, he continued to use the same account to tweet to the same followers. PhoneDog sued Kravitz for continuing to use the Twitter account, claiming that the “compilation of subscribers and the password used to access the account” constituted company trade secrets. Valuing each of the 17,000 followers at $2.50, the company sought damages of $340,000 for “stealing” each of those followers for 8 months.
Needless to say, the discoverability of social media posts is an important issue for litigants on both sides of the “v” and will continue to be the subject of fiercely-litigated motion practice. We will monitor the issue and post updates as courts across the country rule on this imporant, oftentimes substantively dispositive, issue.
Rick Bortnick
One of the high-profile battles being fought in the social media world continues to be over the ability of one party in a lawsuit to compel the other party to produce messages, posts, pictures, and other “private” things done over a social networking site like Facebook. The trend continues to reveal that courts are willing to compel disclosure in the right circumstances, and the most recent decision issued by a New York appellate court is no different.
In Patterson v. Turner Construction Company (New York Supreme Court, Appellate Division, First Department, October 27, 2011), the plaintiff sued for personal injury damages that included physical and psychological injuries that he claims to have suffered. During the lawsuit, the defendant asked the court to direct the plaintiff to provide an authorization allowing defendant to obtain “all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived[.]” The plaintiff, obviously, fought that request.
Posted December 2nd, 2011 by Andrea CortlandcloseAuthor: Andrea CortlandName: Andrea Cortland Email: acortland@cozen.com Site: About: Andrea Cortland joined Cozen O’Connor’s Philadelphia office in September 2009 as an Associate in the Global Insurance Group. Prior to joining the firm, she participated in the Cozen O’Connor Summer Associate Program.
Andrea earned her law degree, magna cum laude, from the University of Miami School of Law, where she was Symposium Editor of the University of Miami Inter-American Law Review, a member of the Moot Court board, and a Dean's Fellow in the Academic Achievement Program. She organized a symposium entitled "Righting Wrongs? The Inter-American System of Human Rights after 50 Years," in celebration of the 30th anniversary of the Inter-American Court of Human Rights, the 40th anniversary of the American Convention on Human Rights, and the 50th anniversary of the creation of the Inter-American Commission on Human Rights. The symposium discussed the roles the court and commission have played in furtherance of human rights throughout the Americas and addressed current areas of concern. Andrea also wrote a comment note, "United States v. Burns: Canada's Extraterritorial Extension of Canadian Law and Creation of a Canadian 'Safe Haven' in Capital Extradition Cases," which was published in Volume 40 of the University of Miami Inter-American Law Review in Fall 2008.
Andrea earned her undergraduate degree, summa cum laude, from the Rutgers College Honors Program of Rutgers University.See Authors Posts (3)
“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!
With the help of our readers, Cyberinquirer has again been named as one of LexisNexis’s Top Insurance blogs 0f 2011. We are obviously flattered, particularly in view of the quality of the other blogs selected to this august list. It shows that people are reading what we have to say. And that, perhaps, they are interested in what we have to say. We sure hope that to be the case. We love thinking, reading and talking about tech, privacy and cyber related issues (yeah, admittedly we’re geeks). And we hope that you, our readers, gain from our insights, even if you don’t always agree with them.
So now that we’ve been recognized by LexisNexis for the second straight period, maybe some of you, our readers, will be more comfortable authoring a piece we can post. Remember, this blog is open to all relevant, responsible submissions, be they articles, commentaries, or just comments on something we have said that strikes a chord. If you’ve got something to say that may be of interest to others in the community, email it to me at rbortnick@cozen.com and I will get back with you promptly. We strive to publish fresh, interesting content on a regular basis, but its not always easy, as we do maintain law practices. And have other commitments. So flip your authored pieces. We’d actually appreciate it.
Needless to say, we couldn’t have done this on our own. So the honor is not just for us, but for you too. Thanks.
I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.
In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the “paramount ideal” of pursuing truth favors liberal discovery of relevant information on social media sites.
In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff’s objections to providing non-public portions of plaintiff’s Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff’s claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.
Just as lawyers now routinely conduct due diligence on opposing parties’ social media pages. some lawyers also are monitoring postings by jurors on social media sites.
In a recent ethics opinion issued by the New York County Lawyers’ Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors’ postings on publicly available social networking sites during trial. But they must not “friend” or “tweet” jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.
It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. The posts and photos may show a party to be lying about the extent of his or her claimed injury or disability, or they could undermine or support other claims. Facebook and other social media sites also have become fertile ground for cutting edge ethical questions posed to state Bar ethics committees.
In a recent ethics opinion issued by the San Diego County Bar Association, a lawyer asked if it was proper to “friend” request high-ranking employees of a company the lawyer was suing on behalf of a former employee pursuing a wrongful discharge case. The lawyer believed that these high-ranking employees were dissatisfied with the company and likely had been posting negative information on their social media pages that were accessible only to those persons who had been accepted as “friends”.
On January 20, 2011, a federal class action lawsuit was filed against MySpace in the United States District Court for the Eastern District of New York. If successful, this new lawsuit could have dramatic implications for social networking sites and their users. Either way, it provides another opportunity to make a couple of privacy-related points for employers.
The MySpace lawsuit was filed on behalf of all former and current users of MySpace, who seek damages for the alleged improper and voluntary disclosure of personal and private information and data in response to foreign court search warrants without the knowledge or authorization of the MySpace users. The class alleges that search warrants issued by state judges for certain information have no force and effect when they are issued to MySpace’s California headquarters from other states, but that MySpace nevertheless provided responsive information and data voluntarily.
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.
A “trend” is generally defined as a general course, drift or prevailing tendency. In the battle between the potential privacy rights of a social networking site user and the desire of a lawsuit party to have full access to the private portions of that user’s profile, the trend favoring full and unfettered access has become clearer with a decision just issued by the Pennsylvania Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc.
In McMillen, the plaintiff was injured during a stock car race, and sued for damages after being rear-ended during a cooling down lap. He alleged significant physical injuries and overall loss of general health and vitality, as well as an “inability to enjoy certain pleasures of life.” During the lawsuit, the defendants requested that plaintiff identify the name of all sites to which he belonged, and to identify his user name(s), login name(s), and passwords. Plaintiff responded by stating that he belonged to Facebook and MySpace, but he refused to give the other requested information based on confidentiality and privacy grounds.
There have been a recent flurry of blog posts and media stories warning internet users about the potential dangers of posting their whereabouts on social networking sites, as such personal information is being used by opportunists to facilitate crimes. For example, just in the last month, three men in Nashua, New Hampshire allegedly used information they obtained from users’ Facebook status updates to learn when the users would not be home and thereupon broke into their vacant and vulnerable residences. Although Facebook has denied any link between its site and the crimes, the Nashua police believe that detailed information about the posters’ travel plans provided the thieves with sufficient information to know when the homes would be unoccupied.
Of course, the incidence of such crimes has not been widely disseminated through traditional media sources, such as newspapers, radio and television. As such, most Americans are unaware of this increasing phenomena. At the same time, internet users are more widely and more frequently publishing their personal information, including their travel and vacation plans, on social networking and other public sites. Moreover, beyond the routine “tweets” and run-of-the-mill social networking status updates, new applications for cellular phones and PDAs are being created to facilitate geographical updates. These applications such as “Foursquare,” “Gowalla” and “Facebook Places,” enable users to instantly identify their current physical location on the profiles they have created on social networking sites. Needless to say, allowing geographical information to freely be disclosed to the public can provide opportunists with even more accurate information about the whereabouts of their victims and their distance from an unoccupied and vulnerable residence.
Google, Facebook, Twitter, Foursquare—millions of Americans, including myself, depend on these cyber sites as their gateway to information and communication in the outside world. What we may not realize, or choose to ignore for convenience’s sake, is that this gateway lies on a two-way street. The information that we seek using websites such as Google and what we communicate on Facebook and Twitter provide companies with vital data to better market their products to us. This use of information is referred to as “data mining. ”
An example of data mining can be seen in the advertisements that pop up on the side of your Facebook home page. Such ads are often relevant to the information posted on your “Profile” page, such as advertisements promoting products from your college alma mater.
At the outset, data mining seems like a win-win situation for both the consumer and the seller—the consumer is marketed with a product in which they are seemingly interested and the company has utilized its advertising budget in an informed, cost-effective manner. At the same time, however, the threat of an invasion of privacy is real and has the attention of members of Congress and federal officials to create legislation regulating the way in which, and the extent to which, our personal information is shared with third parties.
Your employee is being paid millions of dollars each year to perform his job. Right in the middle of today’s tasks, as he is about to receive instruction from his supervisor, your employee takes out his cell phone and posts a “tweet” on his feelings about his performance to all of his friends who have signed up to follow his twitter board. Would you have a problem with that?
At least two employers did. News surfaced last week that Eric Mangini, head coach of the NFL’s Cleveland Browns, has threatened to fine players for tweeting about events at training camp, and particularly during team meetings. This on the heels of the well-publicized action taken last year by the NBA’s Milwaukee Bucks. In that case, Bucks forward Charlie Villanueva apparently posted a message to his Twitter feed from his cell phone when he went into the locker room at halftime of a basketball game against the Boston Celtics. According to reports, the tweet that was posted from Villanueva’s “CV31” screen name read: “In da locker room, snuck to post my twitt. We’re playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up.”
One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets. We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security. On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.
The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.” The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.” And other intelligent banter.
“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?
Posted April 21st, 2010 by Kendall HaydencloseAuthor: Kendall HaydenName: Kendall Hayden Email: KHayden@cozen.com Site: About: KENDALL KELLY HAYDEN is an associate in the Dallas office of Cozen O’Connor, P.C., where her litigation practice focuses on insurance, commercial, and transportation law. She is a graduate of the State Bar’s leadership academy and serves as an advisory member on the Texas Bar Journal Board of Editors.See Authors Posts (1)
A man and a lion were arguing about who was best, each one seeking evidence in support of his claim. They came to a tombstone on which a man was shown in the act of strangling a lion, and the man offered this picture as evidence. The lion replied, “It was a man who painted this; if a lion had painted it, you would instead see a lion strangling a man. But let’s look at some real evidence instead.” The lion then brought the man to the amphitheater and showed him so he could see with his own eyes just how a lion strangles a man. The lion then concluded, “A pretty picture is not proof: Facts are the only real evidence!”
The moral of the story has indeed changed since the times of Aesop, at least in today’s courtroom. Social networking websites such as Facebook, MySpace, and Twitter invite attorneys and their clients into a lion’s den of pictures and postings, creating a haven for evidentiary consequences that can be unexpected obstacles if attorneys are unprepared to counter them.
INTRODUCTION
With claims such as “Facebook is a great place to keep in touch with friends,” “Using Twitter is going to change the way you [stay] in touch,” and “MySpace lets you meet your friends’ friends,” social networking websites are, admittedly, enticing. This article surveys recent evidentiary issues involving these sites across multiple practice areas and counsels how to avoid some of the adverse rulings discussed herein.
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?
Posted February 22nd, 2010 by Narine BagdassariancloseAuthor: Narine BagdassarianName: Narine Bagdassarian Email: nbagdass@yahoo.com Site:http://ca.linkedin.com/pub/narine-bagdassarian/19/855/ba3 About: Narine Bagdassarian is a lawyer with Jones Harley LLP in Toronto, Ontario. Her experience focuses on insurance defense work - personal injury, property loss, products liability and subrogation. Before moving to Toronto, she was a practicing attorney in Los Angeles, specializing in Workers’ Compensation Insurance Defense. She received her Bachelor of Arts degree from UCLA in 2002 and, in 2005, she obtained her law degree from Whittier Law School.
Narine is a huge UCLA Bruins football fan, as well as being a devoted Los Angeles Kings fan. (Pre-game superstitions and protocol? Check.) She looks forward to the day when she can own the Kings. In the meantime, she's attempting to resist the urge to speak like a Canadian (failing miserably at this, she's been told).See Authors Posts (5)
Who would have thought a comment as innocent as “Just walked into work at Cozen O’Connor-Toronto…so much work to get done” could potentially cause you so much trouble?
I came across an article this weekend by Tracy Staedter, titled “I’m Not Home: Please Rob Me”. Ready to become paranoid? Read the article – it’s short and to the point. Ever send out Evites? How about prior tweets, MySpace posts, etc. inviting people to your place and including an address? Bingo! Better pack up and move quick!
The website causing havoc is www.PleaseRobMe.com. Check it out…make sure you aren’t on the site…then check again after every time you tweet, post, etc. Do you have the time to constantly check? Probably not. Should you? Probably. It may make you paranoid, but then again, shouldn’t you be? But should the creators of the website be blamed – legally, morally, ethically? Should they be held accountable for what you put out into the public realm? Can you sue for violation of your privacy rights? Do you really have an expectation of privacy in any of those posts? In an age where MySpace, Friendster and other social networking sites regularly have their records subpoenaed, why should anyone think that anything they post will be “private”? What piqued my curiosity even more was how this website could apply in the criminal or tort law application. Can this website be used to substantiate or corroborate an accused’s alibi – “Your Honor, look! I have proof that I wasn’t in the city when the crime occurred…I tweeted that I would be in Los Angeles!” Look, my knowledge of Canadian (or U.S., for that matter) Criminal Law/Procedure does not extend further than the 800 or so pages of textbooks I read while in law school. But surely this website can be put to more use than just what the creators intended. So long as a proper foundation is laid, and the purported evidence is relevant, it may be admitted, right? Something to definitely consider as a defense attorney.
The creators of the website claim the site is supposed to help us…to open our eyes to the evil out in the world. Call me crazy, but perhaps a simple email addressed to me would have been more appreciated…though it leaves one wondering if such a logical course of action would have been as effective.
As the cyber war of words heats up between the U.S. and China, the rest of the world is taking notice….and proposing action.
Most recently, the head of the United Nations’ communication and technology agency, Secretary General Hamadoun Toure of the International Telecommunications Union, proposed a treaty whereby member countries agree not to precipitate a cyber attack against other member countries. “The framework would look like a peace treaty before a war,” he is reported to have said.
Secretary Toure’s proposal follows a series of concerns expressed at last month’s World Economic Forum in Davos-Klosters, Switzerland, including a harsh warning that cyber attacks could amount to a declaration of war. According to Secretary Toure, “[a] cyber war would be worse than a tsunami – a catastrophe.” Because of the potential devastating consequences of a cyber war, the Secretary strongly recommended that countries agree not to harbor cyber criminals and “commit themselves not to attack another.” Of course, nothing is quite as simple as that. For example, John Negroponte, the former director of U.S. intelligence, cautioned that intelligence agencies would “express reservations” about such a treaty. Given the breadth and scope of China’s, Russia’s and other countries’ intelligence operations and their reported limits on information disclosures, Mr. Negroponte’s remarks likely would be echoed by other nations.
Pamela Pengelley, our resident expert on Facebook, is now internationally recognized for her expertise.
Most recently, Pamela was quoted in an article published by Law 360 entitled “Poking Around Facebook Could Win Your Case.” According to Pamela, “‘Lawyers are realizing [Facebook] is a gold mine of information…it’s pretty much standard that you subpoena Facebook when you get a personal injury action. It’s not a substitute for having a private investigator, but people will put up incriminating photos online without realizing that there can be consequences in a lawsuit.’”
Pamela further observed that Facebook is “most effective in lawsuits where plaintiffs are claiming an injury, such as when their health or ability to work has allegedly been impaired”.
Kudos to Pamela. Where will her sage words of wisdom appear next?
Emailing. Instant messaging. Texting. On-line gaming. Ten years ago, even five years ago, such words and concepts were alien to the typical luddite. Now, these terms are not just parts of the common parlance; a vast majority of us actually use these resources on a daily basis (in some cases, with our childrens’ guidance and assistance).
Consider, then, the relatively new concept of “cloud computing.” In lay terms, cloud computing is the on-line or internet-based use of a third-party vendors’ or service providers’ off-site (and hopefully secure) servers for data storage and/or management. Hotmail, Facebook, LinkedIn, YouTube and Google all use cloud computing to serve their members, often at no cost. At the same time, there are a growing number of vendors (like Apple) which “host” or “back-up” at-home and business computer systems by storing a consumer’s data or facilitating their use of cost-effective business solutions for a monthly or annual fee. Users typically do not have to incur fixed costs or purchase hardware or even software programs. All they need is access to a computer and the internet. And with that, voila! Cloud computing is just a click away.
Needless to say, the advent of cloud computing has opened up a world of opportunity for entrepreneurial software developers, hardware providers, and data storage companies around the globe. At the same time, it has created new business segments with a keen need for insurance products. Cyber insurance. Tech insurance. Property/All-Risk insurance. Business Interruption insurance. Professional Services/E&O insurance. Fidelity/Crime insurance. And, in some cases, personal injury/advertising injury coverage.
The potential third-party exposures are endless. Consider, for example, the legal (and regulatory) implications (and concomitant need for insurance) when an unauthorized user hacks into a “cloud” database storing personally identifiable or proprietary business information. Or think about the possibility of liability for a software developer or data storage vendor who has a customer that uses the cloud to host viruses or illegal content. Or who simply release information about their clients to marketers, advertisers or other third-parties without considering the impact or legal ramifications of their doing so. And how about power outages or other crises or service interruptions that prevent customers from accessing their accounts or critical business information that may be the key to closing an all-important business deal (resulting in privacy claims, claims of lost income, lost profits and business interruption expense and other alleged third-party injury).
So too, first-party cyber/tech risks are well known in other contexts and would apply with equal force and effect to cloud computing. The threat of service interruptions, data corruption and the like all necessitate the need for insurance.
The bottom line, as always, is that underwriters need to constantly stay ahead of the curve and tailor their products (and marketing strategies) to address the ever-changing landscape of new and innovative technology resources. Today cloud computing. Tomorrow? Ask me tomorrow night….
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.
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 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.
The measure of effectiveness of a CEO and its executive board has always been the degree to which the business is achieving its purpose. Whether in Canada, the U.S., Europe or Asia, an executive board’s purpose should be to increase shareholder value, a purpose that is best accomplished by serving the needs of various stakeholders. Somewhere in the pyramid of stakeholders is the consumer or client, whose likes, favorites, and preferences must be met with quality personalized products and services that deliver high competitive value. In an interconnected global knowledge economy, this has meant listening to what consumers are saying online through social media platforms like Facebook and Twitter, and engaging in two-way conversations to respond in real-time to consumer demands.
The recent decision The Queen v. Cole by the Supreme Court of Canada touches upon interesting issues regarding information privacy in the digital age.
As users constantly update their Facebook and other social networking profiles, they may be unwittingly doing something else as well: creating a cache of evidence for a future adversary to use against them in discovery and at trial. Trial courts have increasingly allowed parties to discover the private portions of social networking sites when doing so would likely lead to the disclosure of admissible evidence.
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