Risky Tweets and Dangerous “Shares”: The Admissibility of Social Media Evidence
As social media sites continue to become increasingly pervasive in all aspects of everyday life, courts in Canada, the United States, and abroad have grappled with questions regarding how evidentiary rules should treat evidence gleaned from websites and applications such as Facebook and Twitter.
Although emerging case law provides some guidance regarding how litigators should handle this type of evidence, the law in this area is still somewhat unsettled.
The Admissibility of Social Media Evidence in Canada
In Canada, numerous courts have addressed the use of social media evidence in the courtroom. Although the law continues to evolve, there is a trend toward treating Facebook items like traditional evidentiary documents. Courts in Ontario and elsewhere have held that items that are relevant are admissible.
This does not mean, however, that merely maintaining a Facebook account means it is open season on your photos, status updates, and other information. In other words, not all Facebook material is necessarily relevant.
Courts have also recognized the privacy rights of third parties when ordering the production of Facebook information. As a result, production orders are narrowly tailored to uphold the privacy rights of third parties that may have commented on relevant information or communicated privately with Facebook users.
Important Cases in the Area of Social Media Evidence
Within the past several years, Canadian courts have handed down several important decisions that have shaped the way the common law treats social media evidence and discovery requests related to it.
In 2007, the Ontario Superior Court addressed Facebook evidence in a pair of groundbreaking cases:
In Kourtesis v. Jaris, the court complied with the defendant’s request to cross-examine a witness regarding Facebook photos. This case was significant because the defense did not discover the photos until the trial was well underway. Because the photos contradicted the witness’s earlier testimony, the court allowed the cross-examination.
In Murphy v. Perger, the court granted the defendant’s motion for production of photos posted on the plaintiff’s Facebook page on the basis that 366 of the plaintiff’s “friends” had access to the photos. The court held that any invasion of privacy was minimized by the sheer number of people authorized to view the photos.
In a 2009 personal injury case, the Ontario Superior Court in Leduc v. Roman allowed the defendant to cross-examine the plaintiff about the kind of information posted to his Facebook profile. The court’s decision seemed to indicate that the mere existence of a Facebook account makes at least some of the information on it relevant. The court did not, however, require the plaintiff to produce every document associated with the account.
The Ontario Superior Court granted a production request in Wice v. Dominion of Canada General Insurance Co. The case, which was decided in 2009, involved a brain injury sustained in a car accident. The defendant successfully argued that the plaintiff’s Facebook page was relevant because it showed the plaintiff participating in a number of physically demanding activities. Because the plaintiff’s claim turned on his assertion that he required 24-hour care, the photos were especially critical to the defendant’s case. The court agreed and ordered the plaintiff to preserve his account intact or risk a spoliation of evidence charge.
In Schuster v. Royal Sun Alliance Insurance Co. of Canada (2009), which involved a car accident, the defendant filed an ex parte motion under Civil Procedure Rule 45.01(1) – the civil equivalent of a search warrant. The defendant sought to compel the plaintiff to produce Facebook photos that showed her sitting on the floor which, according to the defendant, contradicted her claim for loss of enjoyment of life. If granted, the defendant’s motion would have forced the plaintiff to give the defendant complete access to her Facebook account, including her username and password. Although the court granted the defendant permission to cross-examine the plaintiff on her Affidavit of Documents, it stopped short of allowing the Rule 45.01(1) motion in its entirety.
In 2010, the Superior Court of Ontario handed down an important decision regarding the definition of “privacy” in the Facebook context. In Frangione v. Vandongen, the plaintiff, who sued for damages resulting from two car accidents, claimed that his injuries prevented him from sitting at a computer for longer than 15 minutes at a time. The defendant sought access to the plaintiff’s computer hard drive, including the private sections of his Facebook account. Although the plaintiff produced the public sections of his Facebook profile, he refused to turn over the restricted access portions of his account based on privacy rights. The court held that the plaintiff’s claim that he had a privacy expectation in communications with 200 “friends” was “preposterous” and ordered the plaintiff to reveal both public and private information.
There is little question that Facebook information does not enjoy the same level of privacy protection as traditional forms of correspondence, such as letters and print photographs. The Internet allows people to quickly share information with hundreds of people with a few clicks of a mouse. Furthermore, social media “friends” often include casual acquaintances that an individual may never have actually met in real life.
As a result, most courts regard Facebook information and personal pages as admissible if a party can demonstrate that they are relevant to the issues at hand. Going forward, lawyers should be prepared to address these issues with their clients. Both plaintiffs and defendants have an obligation to disclose social media evidence if it is relevant to the case. In short, it is generally a good idea to think twice before posting photos and other information to social media sites.