MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

224 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
unlike other social networks’ evidence, most jurisprudence involved
proving authorship of potentially damaging posts rather than trying to
uncover the posts themselves. MySpace is referenced more in American
case law than in Canadian case law.
B. Facebook
Launched in 2004, Facebook allows the creation of user profiles and
discourages anonymous posts. Originally confined to college campuses, it
has surpassed MySpace in popularity. 6 The initial terms of service (which
required users to have an academic email account, use a real name and
have an actual photograph) have been relaxed to allow anyone with an
email address to create a profile. However, Facebook still reserves the right
to disallow fake names. Facebook’s most popular feature has been users’
“walls”, more recently changed to “timelines”, where users are encouraged
to share personal updates, videos and photographs. As users need to
approve their “friends” and can control who accesses their profiles, there is
a sense of privacy. Perhaps as a result there is a greater predisposition for
users to reveal things they might not otherwise share publicly.
Consequently, evidence from Facebook is becoming increasingly
important in both criminal and civil trials. In the criminal context, users
have been convicted of uttering threats, uploading incriminating pictures
linking them to crime scenes, or posting comments undermining their
credibility. In family courts, evidence retrieved from Facebook is being
used to challenge the parenting ability of partners in custody disputes. In
civil trials and injury lawsuits, defendants are increasingly using discovery
motions against plaintiffs to uncover Facebook photographs that may
undermine the extent of plaintiff claims.
C. Nexopia
The largest social network run by a Canadian company is Nexopia,
based in Alberta, and its user base is mainly teenagers. The primary
references in Canadian courts to this particular social network site refer to
sexual predators targeting its younger user base and generally, evidence is
6
Erich Schonfeld, “Facebook Finally Catches Up To MySpace In The US”. (15 June
2011) online: .