Jan 25, 2011 in News Blogs

Blogs: How Private are Your Privacy Settings? Facebook and Privacy during Litigation

As Facebook is the largest and fastest growing social networking site, it is no wonder that those involved in or contemplating litigation question their right to privacy.

Facebook is a free-access social networking website which allows individuals to interact with each other and share information, divulging personal, professional, and social information. Users create a profile which they can share with others, and optional privacy settings are available to restrict access to ?Friends?.

Despite user control over their own privacy settings, the trends in Canadian case law support the production of a private Facebook profile during the course of litigation, regardless of a user's privacy settings.

In Murphy v. Perger[1], the court ordered production of a private Facebook profile on the grounds that pre-accident photographs were put into evidence by the Plaintiff and therefore post-accident Facebook photographs were relevant to the case. The court also noted that the Plaintiff's 366 ?Friends? reduced the Plaintiff's expectation of privacy.

In Leduc v. Roman[2], the court held that the purpose of Facebook is to make personal information available to the public, and a party cannot rely upon their self-set privacy settings. Similarly, in Carter v. Connors[3], the court noted that Facebook disclosure would not infringe upon a reasonable expectation of privacy.

Although the existence of a Facebook profile may not entitle access during litigation, the court will account for any material in a profile that is relevant to your case. It is important to recognize that your privacy settings will not prevent the opposing side, or the court from viewing your profile. You may be required to preserve and produce your profile during litigation - privacy settings or not.

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[1] [2007] O.J. No. 5511[2] [2009] O.J. No. 681[3] 2009 NBQB 317