MacAdams Law Firm:
205 Gladwin Centre
2955 Gladwin Road
Abbotsford BC Canada
V2T 5T4

Phone: 604-850-1675
Toll Free: 1-877-269-1274
Fax: 604-850-1937
Email: mlf@macadamslaw.com
Web: www.macadamslaw.com

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Marc Misner, MacAdams Law Firm




According to Time Magazine, Facebook membership is estimated to exceed 500 million as of June 2010. What makes this figure particularly astounding is that in 2008 - only 24 months before - Facebook's membership stood at around 100 million.

That Facebook's membership has exploded to more than 14 times the population of every man, woman, and child in Canada in such a short period of time is proof that internet social media is no longer just for the computer savvy: Facebook is main stream. 




Social media is a broad term that refers to any number of websites that provide an online platform into which a user can add or "post" information. 'Information' includes everything from the information the user types into the user's own profile to photographs, videos, or documents the user uploads into that profile. Social media can include social networking sites such as Facebook, Twitter or LinkedIn; social bookmarking sites such a Del.icio.us; and social news sites like Digg or Reddit.

The 'social' aspect of social media is of course enhanced by the instantaneous nature of the internet and its easy accessibility from any electronic device with internet access capability. Instantaneous updates and easy accessibility allow users of social media platforms to post new information and to check for new information posted by friends or colleagues at any time in nearly any place and as often as users want.

According to nielsen.com, in December 2009 Facebook alone logged 206.9 million unique visitors - or distinct visitors who logged onto Facebook at least once during the month of December 2009. Facebook itself boasts that: there are more than 60 million updates to its user pages each day; more than 3 billion photos are uploaded each month; and more than 5 billion pieces of content (e.g. web links, news stories, and blog posts) are shared each week. In short a great deal of information is constantly exchanged every minute of every day. Given that this information exchange usually takes place in relative anonymity and between friends, it is easy to see how people might think that what they post is private and not subject to legal consequences. This of course is not the case.




When a lawsuit is started, usually the plaintiff - or person starting the lawsuit - accuses the defendant - or person who is defending against the lawsuit - of committing some wrong that the plaintiff says requires compensation. In the context of a civil lawsuit, compensation is usually in the form of money (called damages) paid by one of the parties to the other. After the plaintiff and defendant have stated their accusations clearly, they each embark on an investigation to find evidence supporting their respective claims. The plaintiff and the defendant are legally obligated to provide the other with any information - including emails, photographs, videos, audio recordings, paper or electronic documents, and yes, information posted to websites - that may be relevant to the claims of each party to the lawsuit. If a party to a lawsuit does not provide relevant information the court can punish him or her. Failure to disclose relevant information can result in an adverse court order, even before trial, against the party failing to disclose.




Canadian courts have held that the legal obligation to disclose relevant information in a lawsuit extends to the information exchanged on social media websites like Facebook. In some instances, Canadian courts have even compelled a party in a lawsuit to disclose information posted to a private section of Facebook that only the user's 'friends' (as selected by the user) can access.

In a 2007 case called Murphy v. Perger, Jill Murphy, the plaintiff, sued the driver of another vehicle for causing a car accident. Ms. Murphy claimed that she suffered from chronic pain as the result of a car accident. She sued the other driver for damages, including damages to compensate Ms. Murphy for no longer being able to do some of the activities she enjoyed before the car accident. As proof that her lifestyle had been changed by the car accident, Ms. Murphy provided to the other driver pre-accident photographs of her engaged in various activities.

The other driver, however, had access to a Facebook profile called "The Jill Murphy Fan Club" created by Ms. Murphy's sister. Ms. Murphy had access to the profile. The Jill Murphy Fan Club profile was not restricted - it was open to the public and it had post-accident photographs showing Ms. Murphy at a party. This public profile lead to Ms. Murphy's private profile that was restricted to her 366 friends. 

Ms. Murphy claimed that she was not obligated to disclose to the defendant driver the photos posted to this restricted Facebook profile. The Ontario Superior Court disagreed. The court said, "Having considered the competing interest, I have concluded that any invasion of privacy is minimal and is outweighed by the defendant's need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site."

In Leduc v. Roman (2009), another car accident case, the Ontario Superior Court made additional comments about the obligation to disclose information posted to restricted sections of a Facebook profile: "...A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in [a lawsuit]..."

In 2009 the British Columbia Supreme Court found that a plaintiff had an "...inflated view..." of her injuries as the result of a car accident in which the defendant was at fault. In Bagasbas v. Atwal, the plaintiff claimed she was entitled to over $40,000 in damages for pain, suffering and loss of enjoyment of quality of life. Just like the plaintiffs in Murphy v. Perger and Leduc v. Roman, the plaintiff gave evidence that she was unable to do activities after the car accident that she could do before. 

Because of the plaintiff's legal obligation to disclose relevant information, the defendant obtained the plaintiff's private Facebook profile information. This private information included post-accident photographs showing the plaintiff doing the very activities she said she could not do. The court said: "the photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas."

The plaintiff asked for over $40,000 in damages but got $3,500.




In 2009, the British Columbia Court of Appeal upheld a decision which compelled a plaintiff to offer up his computer hard drive to be copied. In Bishop v. Minichiello, the plaintiff sued the defendant for causing a car accident that left the plaintiff injured. Among the injuries claimed, the plaintiff said that he suffered from "...debilitating fatigue..." as a result of the car accident. The defendant alleged that the plaintiff's fatigue was a result of the plaintiff spending hours on Facebook late at night. The defendant successfully applied to get access to the plaintiff's hard drive and the information on that hard drive that showed when and for how long the plaintiff spent time on Facebook. 




Never dance in two-inch heels; or, if you just can't help yourself, remember that everything you put into your computer and onto the internet can be discovered. Social media is here to stay. Even if their current rise in popularity levels out, social media platforms like Facebook will endure because they are easy to use, practical, accessible, and fun. Just remember, any information posted to a social media website can be discovered. If you are a party to a lawsuit, then that information can (and likely will) become evidence in the legal proceeding.