Uncovering the Truth:

“Social network” was first coined in the mid-1950s by sociologist J. A. Barnes to describe the physical interactions of people who have similar interests. Today, with the rise of the internet and information technology, this term has taken on a new “virtual” meaning. ¹ There are numerous different social networking sites on the Internet, with Facebook and MySpace being the most popular. They all center around a personal profile, which contains standardized information such as your name and e-mail address, and can include additional information at the discretion of the account holder.

As the popularity of these sites increases, so too does their usefulness. Today, everyone from potential employers to lawyers utilize the information contained within these sites to gain a better understanding of the people with whom they will be dealing. However, the use of social networking sites by defence lawyers has raised many questions in both Canada and the United States. They have been labelled by some as “treasure chests of information”² with the most common use being to locate potential evidence. For example, in Kourtesis v. Joris the plaintiff testified that she no longer had a social life, yet photographs from Facebook which depicted the plaintiff in a celebratory nature, were introduced and consequently the claim for general damages was dismissed.

In addition to being a source of evidence, the information found on social networking profiles, which could include things such as photos, videos, comments, games, personal information (name, birth date, marital status, sexual preference, etc.), can be used as a means to gather background information on a plaintiff, to determine credibility or to determine how a potential witness may be perceived by the court. In some circumstances it may also be helpful in locating potential witnesses.

The presence of specific features on a profile can assist defence lawyers when defending a bodily injury claim. For example, the “mini-feed,” which is located on all profiles, illustrates what the profile holder has been doing while logged on to their account. For plaintiffs claiming to be unable to work in a sedentary environment due to a short sitting tolerance, this may be illustrative of the fact that their sitting tolerance is longer than they are reporting, thus possibly reducing the damages for loss of income.

On a broader view, access to a plaintiff’s profile on a social networking site could be used as a means of self-surveillance. It can give an indication as to what a plaintiff has been involved in post-accident and assist in determining if further surveillance is necessary or appropriate.

Under the “privacy” settings, account holders are able to limit the number of people who can access their profile and when these privacy settings are put on “high,” possible issues may arise with respect to the disclosure of the information contained within. Although a profile may have limited public access, Facebook and MySpace do not guarantee complete privacy. On their “privacy” page both sites contain phrases such as “sharing of information is done at your own risk” and “this information may become publicly available.”

In Murphy v. Perger, for example, the defendant was able to access the plaintiff’s public website which contained photographs of her engaged in various social events. Due to the nature of Facebook as a social networking site, it was reasonable to assume that if her public site contained relevant photos then her private Facebook page would too. The plaintiff’s expectation of privacy was deemed low because 366 of her “friends” had already been granted access.

This case is illustrative of the fact that even when privacy settings are high, generally there is still no reasonable expectation of privacy due to the vast number of people who do have access to the site.

In addition to obtaining a court order for the production of a social networking profile, there are other ways to gain access to a limited profile. One method is to simply ask a friend or co-worker to “borrow” their profile or you may stumble upon the page by accident as illustrated in MySpace Discovery. In this article, a criminal defence lawyer inadvertently viewed a plaintiffs private MySpace page over the shoulder of a witness who had access through a MySpace group to which he and the plaintiff belonged. ³

As stated by John Wesley Hall Jr, a criminal defence lawyer from Arkansas, who writes extensively on evidence issues, “What you put on MySpace, essentially, becomes public consumption. There’s no right of privacy.”⁴ This also appears to be the understanding in Canada, coming from Murphy v. Perger, that there is no expectation of privacy due to the large number of people who already have access to the “private” information.

Despite the move toward disclosure of personal profiles on social networking sites, some judges are being cautious. In T. V. v. Union Township Board of Education, UNN-L-4479-04, Kathryn Brock, Union County Superior Court judge stated that before such comments on social networking sites will be disclosed, the defendant must show that s/he has exhausted all traditional means of discovery to gain access to the necessary information. ⁵

In addition to exhausting traditional discovery means, it appears that the biggest block to gaining access to limited profiles is proving to the court the information contained within them is relevant to the issues of the case. In the opinion of a New Jersey judge, without showing relevancy, “the plaintiff’s privacy interest prevail.”⁶ The need for relevancy is legitimate. Without it, defendants would essentially be on a “fishing” expedition to find information that was beneficial to their case.

Once a defendant can prove the information is relevant, the final step before the information is admitted into evidence is to show its authenticity. This was the issue that arose in Knight v. Barrett. In this case, the plaintiff sought an examination for discovery regarding Facebook printouts with respect to the origin and authenticity of the pages and to determine the purpose for which the defendant might put them into evidence. Justice Hugh H. McLellan granted the motion for an examination for discovery, stating that disclosure would allow counsel for both parties to prepare for trial in the same light and that it was not appropriate for the defendants to use this discovery as a means to try to ambush the plaintiff with regards to his own Facebook.

Some defence lawyers have compared the communication contained in social networking sites to that of e-mails, which are routinely discoverable in civil matters. Social networking sites are a relatively new phenomena, therefore there is limited case law in both the United States and Canada with respect to the admissibility of information. Many judges, however, in both countries have indicated they will treat the information from these sites like other electronic evidence. ⁷

A link can also be made between the photos contained on social networking sites and personal photo albums. These sites are simply the modern way of sharing photos with friends and family. For example, if a defendant became aware of personal, developed photos of a plaintiff which depicted the plaintiff in a manner that was relevant to the issues of the case they would mostly likely have to be disclosed. Why then should photos on social networking sites be considered private when they are essentially the same thing, but with a modern twist?

As the world becomes increasingly digital and we continue to conduct more of our daily lives online, it is not surprising these social networking sites are taking on a whole new purpose. As suggested in Knight v. Barrett, the growing popularity of such sites (there were 42 million users in Oct 2007 and 80 million in May 2008), may eventually result in such pages having to be disclosed in an Affidavit of
Documents. Whether this becomes reality and such pages are routinely admitted into evidence is yet to be seen, however it is inevitable that they will continue to be a helpful tool for defence lawyers for years to come.

J. Charles Foster is principal of Foster & Company in Fredericton, New Brunswick. His insurance defence practice services insurers and self-insured entities throughout New Brunswick.

1. Carole Levitt & Mark Rosch, How Lawyers can Mine Social Network Sites for Personal Information, Nevada Lawyer, March 2008.

2. Vesna Jaksic, “Litigation Clues are Found on Facebook” The National Law Journal, October 15, 2007)

3. Stephanie Francis Ward, “MySpace Discovery” ABA Journal, Jan 2007, Vol. 93, Issue 1, pg 34

4. Ibid.

5. Henry Gottlieb, “MySpace, Facebook privacy limits tested in emotional distress suit” New Jersey Law Journal, (June 7, 2007)

6. Ibid.

7. Vesna Jaksic, “Litigation Clues are found on Facebook” The National Law Journal (Oct 15, 2007).

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As the world becomes increasingly digital and we continue to conduct more of our daily lives online, it is not surprising these social networking sites are taking on a whole new purpose.