SOCIAL MEDIA AND THE ABSENCE OF PRIVACY

Sometimes the law lags behind the “real” world – but the lag time isn’t always as long as you’d think.  For those on the “inside” of the justice system, it’s fascinating to see how the law is adapting to social media sites such as Facebook and LinkedIn.

It’s been at least a couple of years since the first decision of the Courts allowing “personal service” of Court documents through Facebook.  (Service through Facebook may not sound like much but moving a lawsuit forward can be difficult if the Defendant is hiding.)  On top of that, we’ve probably all heard stories by now about people claiming that they couldn’t work due to injuries incurred in car accidents – only to have the insurance company produce pictures obtained from Facebook showing these same accident “victims” actively engaged in their favourite exercises.

Then, of course, there are those who say:  “Hah, they’ll never get me that way – I’ll just erase everything from Facebook if they ask me to produce it.”  A fairly recent New Brunswick decision calls into question the wisdom of that strategy.  In Sparks v Dubé, it was feared that the Plaintiff would, indeed, erase her Facebook entries.  As a result, the Court made an order which most lawyers would tell you is unusual and extraordinary.

The Courts are generally reluctant to make orders unless all parties to the case are present to participate in the hearing.  When a party is absent, the order is referred to as “ex parte.”  In Sparks v Dubé, not only did the Court make an ex parte order, it also ordered the Plaintiff and her lawyer to attend before an independent lawyer for the purpose of accessing the Plaintiff’s Facebook site – with the catch being that the Plaintiff would not know the purpose of the meeting before arriving.

In general, parties to a lawsuit should not expect to obtain ex parte orders nor should they expect to obtain orders such as that seen in Sparks v Dubé - but the case does show how far the Courts will go if they believe that the interests of justice require them to do so.

Article written by Centennial Law Corp. (Douglas E. Dent)