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

Social Incrimination 263
private Facebook profile demonstrating activities and enjoyment of life,
even if it is contrary to his interests in this action.” 181
Notably, Leduc opened information on a social network to potential
discovery regardless of privacy settings. The court adopted the view that
there is no reasonable expectation of privacy, unlike a private diary, when
one posts to a website whose purpose is to share photographs and status
updates. While Facebook and many social networks allow individuals to
hide content from the general public, the court refused to designate user
chosen privacy settings as equivalent to legal privilege:
To permit a party claiming very substantial damages for loss of enjoyment of life
to hide behind self-set privacy controls on a website, the primary purpose of
which is to enable people to share information about how they lead their social
lives, risks depriving the opposite party of access to material that may be relevant
to ensuring a fair trial. 182
A difficulty in many cases is that the sides may not agree on what
material is relevant to a particular claim. Social networks such as Facebook
allow users to post information in a private area because users have
legitimate reasons to restrict who can view what information. While Leduc
made it clear that there is no absolute right to privacy in regards to social
networking content, there is also no obligation for a party to turn over
intimate photographs or embarrassing personal messages to opposing
counsel if they are not relevant to the suit. 183
In Carter v Connors, 184 Ferguson J conducted a broad survey of general
evidentiary rules regarding relevancy. The court concluded that all
evidence that could be logically relevant to a fact would be admissible
unless it was precluded, either by an existing rule or because it was far too
prejudicial. Applying this to social networks, the court concluded that the
threshold was low and that:
…the success of an application to retrieve an individual's electronic computer
data principally depends upon the degree of intrusion into the private lifestyle
choices and electronic activity of the Internet user as well as the probative values
of the information sought. 185
181
Ibid at para 15.
182
Ibid at para 35.
183
Ibid at para 32.
184
Carter v Connors, 2009 NBQB 317, 355 NBR (2d) 235.
185
Ibid at para 36.