Facebook in Litigation - 1

CNN recently reported that Facebook now is nearly as large as the population of the United States. There are about 307 million people living the U.S. and Facebook now says it has 300 million users.

Not surprisingly Facebook has now been used in litigation in Ontario. Here is an article by my colleague Tara Pollitt in which plaintiffs have had their credibility checked against their own Facebook webpages.

THE USE OF FACEBOOK IN LITIGATION by Tara Pollitt

Facebook, a social networking website, allows users to share content with other users such as photographs, videos, and by posting messages. A variety of privacy settings are possible, ranging from making one’s site completely open to everyone to restricting access to one’s “friends” – people who are chosen by the user and are permitted to view the user’s information and share their own information. Facebook has quickly become a resource in investigating claims and courts have overwhelmingly approved of its content as being relevant to issues in litigation.

The first reported decision regarding the use of Facebook at trial is Kourtesis v. Jouris[1]. The plaintiff testified that she had little social life post-accident. Photographs the defendant obtained from her publicly accessible Facebook account showed otherwise. In contrast to the evidence the plaintiff and her brother gave about a family trip to Greece where she sat at a café rather than participating in a festival, photographs from Facebook showed her celebrating on her brother’s shoulders. In the trial decision, Justice Browne referred to these photographs in concluding that the plaintiff had an active social life that was not diminished by her injuries. He dismissed the plaintiff’s claim for general damages.

The first reported motion regarding Facebook is Murphy v. Perger.[2] The defendant gained access to a publicly accessible site called the “Jill Murphy Fan Club” and discovered that there was also a private site created by the plaintiff’s sister but over which the plaintiff had control. She had granted access to her webpage to 366 “friends”. Justice Rady allowed the defendant’s motion to obtain production of material on the site, including photographs, holding that the information on the site was relevant as a useful means of assessing the plaintiff’s damages. She rejected the submission that the motion was merely a fishing expedition. She also rejected the argument that the information was a violation of the plaintiff’s right to privacy; the plaintiff could not have had a serious expectation of privacy given that 366 people had already been granted access to the site.
[1] [2007] O.J. No. 2677 (S.C.J.).
[2] [2007] O.J. No. 5511 (S.C.J.).

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