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”.
Odd as it may seem to those of us who live and breathe cyber, tech and privacy insurance, I have heard anecdotally of municipal authorities who profess that their cities and towns do not need to incur the expense of buying these products. “Why do we need them? We don’t operate on the internet,” they reportedly have said.
Well, my response is “why don’t you think you need them?” Do you maintain a bank account? Do you store personally identifiable information about private citizens, whether in your property records, police files, tax databases or otherwise? Are your employees able to access your municipality’s computer systems remotely? Is it really possible that every single piece of information you maintain is recorded on paper and nothing is stored on a mainframe, whether located on- or off-site? Come on. Its 2010. That’s virtually impossible, isn’t it? Haven’t you read my December 23, 2009 post “No One is Immune. Even Government Entities Need Cyber/Tech Insurance?”
Since that posting, additional municipalities have suffered cyber attacks and been the subject of cyber lawsuits.
Personal information and data can be captured and aggregated in the most unlikely of ways. Take, for example, television viewing habits.
In the past, data aggregators such as A.C. Neilson have used a variety of techniques to measure television audiences’ viewing habits in order to assemble ratings and assist networks and advertisers in identifying viewership and demographic rankings. It began with people compiling viewing information in journals. As technology progressed, Neilson and other data aggregators used “black boxes” attached to televisions to compile the all-important viewership and demographic information. Some people equated these activities to a form of “Big Brother” watching over us, but in virtually all cases, the “Neilson families” did so willingly and were compensated for their voluntary participation.
Just as everything else, we have now progressed well beyond the activities of yesteryear. The latest news on the viewership and demographic aggregation front comes from Google, which has announced that it is teaming up with TiVo, the digital video recording company, to assist advertisers in measuring how and when their ads are viewed by consumers. As most people know, TiVo and its progeny allow viewers to “fast forward” through commercials so that they can view only the content they elect to watch. While a boon to viewers who hate commercials, this capability frustrates advertisers who pay tens of thousands if not tens of millions of dollars to television and cable networks to promote their services and products. According to Google, this new service is an attempt to re-create its AdWords and AdSense models on the small screen.
The hitch is that most TiVo users typically catch the beginning or end of a commercial or other unwanted programming as they attempt to watch their selected shows. Only the most prolific of remote controllers can precisely fast forward their recorded programming to view only what they want and not what they don’t want. Having now had TiVo for 7-1/2 years, I still suffer the fate of imperfect fast forwarding and consequent rewinding. I just can’t totally avoid those pesky commercials, no matter how hard I try. And believe me, I try.
Google is of the view that even that momentary viewership of the undesirable commercials, while not a full ad impression, is meaningful to advertisers. Thus, it plans to use “anonymous second-by-second DVR viewing data” to track how viewers see ads placed through Google TV Ads and to assemble data on viewers’ television habits.
So, what can we as TiVo users do about it? Google has not yet announced if viewers can “opt-out” of this service. If that option is not available, then the only options seem to be that we participate as willing or unwilling (and uncompensated) participants, or give up our TiVo. Needless to say, that latter option is not realistic. I love my TiVo. I won’t give it up. But at what cost? The price of my privacy, it seems.
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.
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.
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.
