Information disseminated through social media platforms such as Facebook and Twitter is of growing utility in litigation matters. Evidence obtained from social media profiles by way of discovery [preservation and production orders] has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely "post" messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.

There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among others things, ordered the preservation and production of entire social networking accounts, have dismissed wrongful dismissal claims based in part on the disparaging nature of comments posted online, and have considered social media evidence against claims of the loss of enjoyment of life and the inability to work. However, the Courts are cognizant of the private nature of this information and have been careful to balance the probative value of this evidence against the privacy interest of the social media user. Generally, the Courts have resolved this tension by making a determination of how “private” the social media account is through the application of a number of factual indicia. As this area of law develops, Canadian Courts and Tribunals will no doubt find increasing utility in the evidentiary value such information provides.

When Social Media is Producible

Canadian jurisprudence is clear that social media accounts are considered documents that must be produced if they contain relevant and material information. This principle manifests itself most acutely in personal injury claims where the “social” aspect of social media speaks directly to the claimant’s loss of enjoyment of life. For example, social media such as pictures of claimants engaged in recreational activities are often admitted as evidence relevant to demonstrating the claimant’s enjoyment of life or ability to work.

However, the probative value of social media is not limited to personal injury claims. In one instance, disparaging comments made against an employer by an employee on a blog was sufficient to dismiss the employees claim for wrongful dismissal. In another, a former employer was able to obtain an Anton Piller order to seize, among other things, the LinkedIn account of an employee that they claimed had breached confidentially restrictive covenants in an employment contract.

Many Courts have inferred from the nature of the social media service the likely existence of relevant documents on a limited-access account. Some Courts have denied such an inference, requiring instead that private information on limited-access accounts is producible only when information available publicly infers the existence of relevant material held privately. Interestingly, some Courts have cautioned that such accounts are likely to contain a degree of “puffery” that must be taken into account.

In determining the privacy interest of the social media account holder, many Courts point to factual indicia of privacy surrounding the account itself. Many social media accounts are of limited access, containing internal controls that limit the viewable content and the discoverability of the account set at the discretion of the account holder. Courts have also considered the number of individuals able to view the social media account. In one example, the claimant’s Facebook account was viewable by 200 Facebook “friends”, only 5 of which were described as “close friends”. The Court concluded that this wide audience mitigated against privacy and the Facebook account had to be produced.

The following table contains a list, with noteworthy considerations, of select reported Canadian cases requiring the production of social media accounts:

Click here to view table.

When Social Media is not Producible

Canadian Courts have clarified instances when social media accounts are not producible. Where the social media accounts are not relevant and material to the pleadings, they need not be produced. Production is also not required in instances where the privacy interest of the account holder outweighs the probative value of the evidence. In one example, a claimant’s Facebook account was viewable by only 67 Facebook “friends” with strict privacy settings. The Court implied that this mitigated in favour of privacy, and the account was not producible. In a second example, the Court noted that permitting access to 139 “friends” operated to exclude approximately 1 billion Facebook users, showing a privacy interest that prevented production.

The following table contains a list, with noteworthy considerations, of select reported Canadian cases not requiring the production of social media accounts:

Click here to view table.

CONCLUSION

When hearing applications for the production and preservation of social media accounts, the Court is being asked to engage in a delicate balance between the privacy of the individual and the probative value of the evidence. Two factors that clearly erode an account holder’s privacy interest include relaxed privacy settings and the existence of relevant information available on public portions of the account that allows the inference of the probable existence of information held privately.

As shown above, the third factor, being a large number of “friends” able to view the social media page, has proven unclear. However, it is likely that Courts are more concerned with the nature of the account holder’s relationship with the audience, as opposed to its size. When making an application for the production or preservation of social media accounts, it may be more appropriate to frame the argument as being about the nature of the “friendship” as opposed to the quantum. The more “public” the audience is, the less likely there exists a legitimate privacy interest.