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Labor & Employment Law

: Thoughts from a Management Lawyer

Facebook and Employment Law

By Michael Fitzgibbon

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I'm a little late to the party, but I heard the news this morning of a recent Ontario case in which it was held that the plaintiff who was in a car accident and sued falleging that "his enjoyment of life has been lessened and the accident caused limitations to his personal life" was required to disclose all pages of his Facebook webpage. The case was written about at Wise Law Blog and Cavanaugh Williams.

The Court discusses the Facebook application:

When a person registers with Facebook, he creates his own profile and privacy settings. Profile information is displayed to people in the networks specified by the user in his privacy settings ? e.g. a user may choose to make his private profile information available to others within his school, geographic area, employment network, or to ?friends? of ?friends?. A user can set privacy options that limit access to his profile only to those to whom he grants permission ? the so-called ?friends? of the user.

The plaintiff set his privacy options to limit access to his posted material to ?friends?. The defence was, therefore, not able to view what was posted.

The state of the law was summarized as follows:

That a person?s Facebook profile may contain documents relevant to the issues in an action is beyond controversy. Photographs of parties posted to their Facebook profiles have been admitted as evidence relevant to demonstrating a party?s ability to engage in sports and other recreational activities where the plaintiff has put his enjoyment of life or ability to work in issue: Cikojevic v. Timm, 2008 BCSC 74 (CanLII), 2008 BCSC 74 (Master), para. 47; R. (C.M.) v. R. (O.D.), 2008 NBQB 253, paras. 54 and 61; Kourtesis v. Joris, [2007] O.J. No. 2677 (Sup. Ct.), paras. 72 to 75; Goodridge (Litigation Guardian of) v. King, 161 A.C.W.S. (3d) 984 (Ont. Sup.Ct.), para. 128. In one case the discovery of photographs of a party posted on a MySpace webpage formed the basis for a request to produce additional photographs not posted on the site: Weber v. Dyck, [2007] O.J. No. 2384 (Sup. Ct., Master).

But what about production of access-limited information?

The issue was addressed in the earlier case of Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) where the Court ordered production of "copies of the web pages posted on her private site, subject to the ability of plaintiff?s counsel to make future submissions in the event that any of the photographs personally embarrassed the plaintiff."

The Court in Leduc summarized the production obligation when dealing with social networking sites:

Although web-based social networking sites such as Facebook and MySpace are recent phenomena, their posted content constitutes ?data and information in electronic form? producible as ?documents? under the Rules of Civil Procedure. Facebook?s Terms of Use and Principles make it clear that a person?s postings fall under that party?s control or power since the account user may post or remove content. If a party to an action posts on Facebook content that ?relates to any matter in issue in an action?, that party must identify such content in his affidavit of documents.

In terms of the obligation of counsel:

Given the pervasive use of Facebook and the large volume of photographs typically posted on Facebook sites, it is now incumbent on a party?s counsel to explain to the client, in appropriate cases, that documents posted on the party?s Facebook profile may be relevant to allegations made in the pleadings. [Emphasis added]

The Court then followed the approach in Murphy:

Where, in addition to a publicly-accessible profile, a party maintains a private Facebook profile viewable only by the party?s ?friends?, I agree with Rady J. that it is reasonable to infer from the presence of content on the party?s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile. ....

Where, as in the present case, a party maintains only a private Facebook profile and his public page posts nothing other than information about the user?s identity, I also agree with Rady J. that a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook?s applications to make personal information available to others. From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of ?friends? with whom they can share information about themselves, and on which ?friends? can post information about the user. [emphasis added]

In those circumstances, "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 an action."

This is not a fishing expedition and the Rules of Civil procedure require that the party seeking production must present "some evidence that a party possesses a relevant document before a court can order production." The Court gives some advice on how to go about this:

Most often such evidence will emerge from questions asked on a party?s examination for discovery about the existence and content of the person?s Facebook profile. Where the party?s answers reveal that his Facebook profile contains content that may relate to issues in an action, production can be ordered of the relevant content.

The general nature of the Facebook service is such that a court could infer, the "likely existence of relevant documents on a limited-access Facebook profile."

This is a very important case for those who practice in the area of employment law.

For example, an employee is terminated, sues and claims damages for wrongful dismissal. Mitigation is always an issue in these cases. If the former employee maintains a Facebook acoount or participates in other social-networking sits (MySpace or the increasingly popular Twitter) the contents of those sites may be highly relevant to that issue.

There are enumerable examples but defence counsel should not overlook this important source of information on discovery and through the litigation and investigation, and plaintiff counsel will be well advised to consider this case when advising their client and preparing their Affidavit of Documents.

Full post as published by Thoughts from a Management Lawyer on March 14, 2009 (boomark / email).