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Facebook: Friend or foe?

facebook-warningBeware all litigants! Anything you post on Facebook may be used against you in a court of law.

In Sparks v. Dube , Ms. Sparks and Mr. Dube were involved in a car accident. Ms. Sparks sued Mr. Dube claiming damages for her injuries, which, she alleged, impaired her ability to study at University and carry out other daily activities.

As is fairly common in personal injury lawsuits, Mr. Dube’s lawyer hired a private investigator. The investigator was able to determine that, following the accident, Ms. Sparks posted pictures of herself on Facebook, where she appears to be engaged in various recreational and social activities, such as a treetrop “zip-line” (where a person travels from one treetop to the next along a rope line in a body harness).

The court held that these photos indicated that Ms. Sparks’ Facebook page may contain information (such as photos or videos) relevant to the lawsuit, which should be disclosed to the defence. The practical problem was: how to order Ms. Sparks to produce the photos and other data on her Facebook page, without giving her the opportunity to remove or delete the information?

The court came up with a creative solution. It ordered Ms. Sparks’ lawyer to arrange for another lawyer to contact Ms. Sparks and arrange to meet with her at a location where there is internet access, without revealing to Ms. Sparks the real reason for the meeting. At the meeting, the lawyer was to force Ms. Sparks to download her Facebook profile and preserve the electronic information on it.

So, to all you litigants out there – do not assume that whatever you post on your Facebook, Twitter, Myspace, or other social media sites will be kept confidential. It could one day be used against you in a lawsuit, and your own lawyer can be made to surreptitiously force you to reveal it.

Maanit Zemel, Associate
Miller Thomson LLP

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Maanit Zemel

Internet and Social Media lawyer, commercial litigator at MTZ Law
Maanit Zemel is a commercial litigator admitted to practice in Ontario and New York, with substantial experience and expertise in Internet and social media law, including Canada’s Anti-Spam Legislation (CASL), privacy, online defamation, cyberbullying and cyber-security. Read more.
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