For the London Free Press – February 4, 2013
Social media has opened the floodgates for the public dissemination of information about our private lives. Websites such as Facebook, Twitter, Instagram and Pinterest provide an unprecedented ability to share our thoughts, photographs, activities, interests and relationship status with thousands of users around the world.
This sharing brings legal issues with it when unintended users are able to access one’s apparent “private” information.
Recent Ontario court decisions illustrate the uncertain state of the law as to whether social media content should be available as evidence in legal proceedings.
In the case of Stewart v. Kempster, the plaintiff was in a car crash that she claimed caused significant and permanent physical injuries. The plaintiff alleged her enjoyment of life had decreased greatly since the accident.
The plaintiff had regularly posted photographs on Facebook for her friends and family to see. The defendant wanted those photographs admitted as evidence in the trial to rebut the plaintiff’s claim that the crash reduced her activities. Although the plaintiff had an expectation that the Facebook photographs would not be seen by unintended viewers, the court had to consider whether the interests of justice outweighed such privacy interests.
The court refused to order production of the plaintiff’s Facebook photographs. It reasoned that the plaintiff did not have any photographs that were publicly accessible, did not intend to rely on any photographs to demonstrate her pre-collision health, and had only allowed 139 “friends” (out of approximately one billion Facebook users) to access the photographs. Before deciding that, the court reviewed the photographs to determine whether they were even relevant.
In making its decision, the court referred to an earlier decision in Murphy v. Perger where the court did order a plaintiff’s Facebook photos to be produced. The plaintiff in Murphy had also been involved in a car crash and claimed she suffered significant reductions to her enjoyment of life. The court considered the privacy interests involved and ultimately ordered production of the photographs for several reasons:
The plaintiff had posted photographs on the publicly accessible portion of her Facebook account that led the court to infer that similar photographs would be posted on the private portion of her account.
The plaintiff relied on photographs taken prior to the crash to demonstrate the impact of the crash on her prior lifestyle. It would therefore have been unfairly prejudicial to not show photographs depicting her post-collision condition.
The plaintiff didn’t have a reasonable expectation of privacy in her photographs because she permitted 366 people to access her private content and allowed public access to other photographs.
These decisions show that the law evolves to address new technologies. Social media sites allow users to set security settings, but this does not automatically ensure that “private” content will be forever sealed away.
Social media users should take a moment to think before they post because they may run the risk of exposing their private lives to the public spotlight — or at the very least to someone on the opposite side of a lawsuit.