More than a means to poke or tweet, social networking sites have evolved from simple messaging tools to a public showcase of the manner in which we live our day-to-day lives. To what extent do we have an expectation of privacy over the data that we voluntarily upload and display on our social networks?
Such was the question before Justice Ferguson of the Court of Queen’s Bench of New Brunswick (Trial Division) in the recently released decision Sparks v. Dube, 2011 NBQB 040. In that case, the Plaintiff and the Defendant had been involved in a car accident, following which the Plaintiff had sued the Defendant for general and special damages due to ongoing health problems as a result of the accident. In a motion brought by the Defendant, the Court was asked to consider whether orders should be granted to compel the downloading and preservation (and eventual production) of the contents of the social networking sites to which the Plaintiff subscribed. The targeted social networking sites included Facebook, LinkedIn, Twitter, MySpace, and YouTube.
The Plaintiff had contended that she had serious, ongoing physical health issues arising from the car accident, such that her claim fell outside the $2,500 cap on soft tissue injuries otherwise covered by provincial insurance legislation. Yet, colour photographs that the Plaintiff had uploaded to Facebook, and that were publicly available through the Plaintiff’s Profile page, raised serious doubts as to the extent or veracity of the Plaintiff’s injuries. These photographs showed the Plaintiff engaged in recreational activities, such as zip-lining.
The Defendant brought the motion for the downloading and preservation of such data on an ex parte basis, that is, to the exclusion of the Plaintiff and her counsel. Although most matters are required to be brought before the court in the presence of both parties so as to respect principles of fairness, the Defendant requested that this motion be held ex parte, due to the risk that a fully-informed Plaintiff could delete any of the posted information, thus making such information impossible to later retrieve.
The Court granted the Defendant’s motion for the downloading and preservation of the Plaintiff’s Facebook information. Not only was the ex parte nature of the motion appropriate in the circumstances at hand, given the risk of permanent data deletion, but the data in question also satisfied the legal test set out by Rule 35.03 of the New Brunswick Rules of Court, that is, (i) the data constituted “property” and (ii) it was related to an issue in the proceeding.
With respect to the Plaintiff’s data on other targeted social networking sites, the Court did not come to the same conclusion. The Court held that data obtained from the “public space” of the Plaintiff’s other Profiles was not sufficient to establish documentary relevance or a semblance of relevance to the issues at hand and thus did not meet the legal test for preservation or production. Nonetheless, Justice Ferguson did note that, if there was any data not publicly available on the Plaintiff’s other Profiles that was relevant to the proceeding, the Plaintiff was bound to disclose its existence and file a further and better Affidavit of Documents.
Once decided that the Plaintiff’s Facebook Profile information be subject to an order for downloading and preservation, the Court considered the logistics of obtaining such information. The Defendant had requested that the Plaintiff’s counsel be served with an order compelling him, unbeknownst to his client, to arrange and supervise the downloading and preservation of the Plaintiff’s data. The judge rejected this proposition, however, on the basis that it would not only destroy the sanctity of the solicitor-client relationship, but also instantly transform the Plaintiff’s lawyer from counsel into witness. Justice Ferguson found instead that the only reasonable alternative was to issue an order compelling the Plaintiff’s counsel to engage another lawyer in his firm or an agent lawyer from elsewhere for the task. This third party, who would be remunerated by the Defendant, would then be in a position to put him or herself in a position of direct supervision of the data downloading while avoiding any conflict of interest. Arguably, although this issue was not raised by the judge, an independent third party would be a more suitable choice, given that a member of the counsel’s firm could also owe a duty of loyalty to the Plaintiff.
Historically, the production of social networking information has not been extensively considered by Canadian courts. As the case law develops, the rules concerning discoverability and production of data posted on social networking sites will inevitably become clearer. For now, decisions such as Sparks v. Dube leave us with one conclusion: “private” or not, information posted on social networking sites is not immune from the far-reaching grasp of the law. And we should act accordingly.