Facing reality: Your Facebook Is Not as Private as You Would Think

Over the last decade, social networking websites like Facebook have become a part of daily life for many people worldwide. With users uploading photographs, messages, and videos, Facebook has become an essential source of evidence in litigation.

There have been significant developments in Canadian law concerning the preservation and production of social media accounts. While the Courts are willing to consider evidence from social media, the case of Garacci v. Ross, 2013 ONSC 5627 advances a more restrictive approach for producing content posted on Facebook.

On January 29, 2008, the Plaintiff was walking on the side of a roadway when she was struck from behind by the Defendant’s motor vehicle. The Plaintiff suffered injuries to her left leg, including a fractured left ankle. The Plaintiff commenced a lawsuit claiming for loss of enjoyment of life and amenities.

At her Examination for Discovery, the Plaintiff advised that she could no longer participate in physically demanding recreational activities, such as soccer, water skiing, and snowboarding. She candidly admitted to going to the gym, attending concerts, and swimming at her cottage.

The Defendant was able to access 12 photographs posted on the public portion of the Plaintiff’s Facebook page. These photos showed the Plaintiff socializing with friends, having drinks, and kneeling on the ground. As such, instagram followers the Defendant brought a motion to produce nearly 1,100 private photographs posted on the Plaintiff’s Facebook page. The Plaintiff opposed the move.

In dismissing the Defendant’s motion, the Court noted that the Plaintiff’s public photographs showed her engaging in activities she admitted to being able to perform. An Affidavit from the Plaintiff’s law clerk confirmed that the Plaintiff’s private photos did not depict the Plaintiff engaging in strenuous physical activity. The Court even randomly reviewed 10% of her pictures for confirmation.

The Court reiterated that the “semblance of relevance” test had been replaced with the stricter “relevance” test. The Court highlighted the importance of proportionality:

In my view, the Defendant’s request is equivalent to a request that Christina produces every photograph taken of her since the accident. This is a comprehensive request and, in my view, amounts to nothing more than a high-tech fishing expedition. The Defendant wishes to rummage through 1100 of Christina’s photographs hoping that something useful or exciting might turn up. That is not an appropriate or proportional form of discovery.

Therefore, the Courts will deny extensive disclosure requests for Facebook profiles. The proportionality and relevance test requires a Defendant to use the Plaintiff’s evidence to show the rationale for the production request, for example, discrepancies between photographs and the Plaintiff’s reported physical limitations.

Our clients need to realize that Defendants are eager to access their Facebook profiles. However, this will be more difficult for Defendants when the face is private, suggesting that the Plaintiff expects privacy. Be sure to review your privacy settings on your Facebook account to ensure that your postings remain confidential – and take careful consideration of the posts you make public as you can be sure that Defence counsel will search your public profile for pictures that may affect the outcome of your case.

Bogoroch & Associates LLP is a leading law firm based in Toronto.