Social Networking in the context of Litigation: Privacy Settings May Not Keep Your Information Private
If you add information to your profile on a social networking site and restrict access to that information to your friends or a particular group of people, you probably regard that information as private. In the context of a litigation, that may not be so.
The Court of Queen’s Bench in New Brunswick recently took the unusual step of ordering that a litigant’s Facebook profile be preserved electronically, without prior notice to her, in order to ensure that relevant information was disclosed in accordance with the rules (see Sparks v. Dubé, 2011 NBQB 040). This plaintiff in this personal injury action had a Facebook profile which contained some public information and some information which could be viewed only by her friends. The defence sought preservation of all text, photographs and video posted on her Facebook profile, both public and private, in order to preserve information that was relevant to any issue in the proceeding. It was argued that the preservation order was necessary because the plaintiff could delete this information and there would be no way of recovering it. The Court ordered the preservation of the entire contents of the plaintiff’s Facebook page. An appeal of this order was planned, but the parties reached a settlement before the appeal was heard.
Elsewhere in Canada, courts have ruled that private, limited-access postings on social networking sites are no different than public postings, and a litigant is required to disclose any posting which is relevant to the action (see Leduc v. Roman,  O.J. No 681 (O.S.C.J.)).
Currently, the courts in B.C. are a little more conservative in granting full access to a plaintiff’s private Facebook page. However, if an application is made seeking information which is narrow enough to the point where the opposing party is not seeking to delve into all private aspects of the plaintiff’s life, then an order to produce such information may be the result (see Bishop v Minichiello,  8 WWR 307). The law surrounding the use of information posted on social networking sites in litigation is still developing in British Columbia. However, our Supreme Court Civil Rules do require that parties to a litigation make disclosure of all documents and information relevant to the action. Depending upon the nature of the action, a person’s postings on social networking sites could be considered to be relevant to the litigation.
This serves as a reminder to all of us to consider the possible consequences before we share information or upload photographs onto social networking sites.
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