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September 30, 2009

Facebook in Litigation - 2

This is part two of Tara Pollitt's article on Facebook in Ontario litigation.

The Murphy case was followed in Leduc v. Roman,[1] an appeal of a Master’s decision. Justice Brown held that a party who maintains a private Facebook account stands in no different position than one who maintains a publicly accessible profile and to permit a party to hide behind privacy controls on a website designed to share social information is to deprive the other party of material relevant to ensuring a fair trial. In Leduc the defendant had obtained an initial order requiring the plaintiff to preserve the website prior to the balance of the motion being heard. This approach is useful to prevent information from being changed or deleted before the motion can be heard.

Facebook was used recently in a trial decision out of Newfoundland called Terry v. Mullowney.[2] The plaintiff was cross-examined at trial using printouts from his publicly accessible Facebook account. The Court explicitly noted that the material from Facebook showed the plaintiff had a full and active social life and without that evidence he would have been left with a very different view of the plaintiff’s social life. The information was a critical factor in reducing the claim from approximately $1.3 million to $40,000.

[1] [2009] O.J. No. 681 (S.C.J.).
[2] 2009 NLTD 56 (Canlii).


  1. Simple question perhaps, but worth asking. If a Facebook profile was completely private, would accessing information there not require a warrant just like coming into someone's home to peruse physical photo albums? Private would imply personal use, would it not? Simply knowing someone has a facebook page should not necessarily convey rights to access the contents. I can reasonably guess the you have photo albums at home, or that you may keep a diary. Would these legally be admissable as well?

    I work in QA. My client group is the IT department for highly regulated company. There is no real difference between electronic and paper records other than method of storage. (A simplification perhaps, but essentially the case.) Why the apparent legal double standard?

  2. Warrants are used in the criminal context. In the civil context, courts can compel parties to produce documents considered relevant to the lawsuit.

    Items such as photo albums or diaries may be relevant in certain cases; for example, photographs of the plaintiff pre-accident are often produced to contrast how she or he is functioning post-accident. That in turn can make post-accident photographs relevant as well.

    The production of electronic versions of documents is not actually a double standard, but really just an extension of the principle that relevant documents are admissible, whatever their form.