Some of us already count Facebook as one of our guilty little pleasures (right up there with the Twilight series and the new 90210). However, as lawyers, our jobs will soon require us to devote a little extra enthusiasm to the notorious timewaster. Why? Because Facebook has reached such an astonishing level of popularity that we must (yes, must) be using it, and in fact embracing it, as one of the everyday tools of civil litigation. Further, we must be encouraging our courts to do the same.
The information and photos posted on a user’s Facebook profile can be invaluable tools in our practices. For civil litigators, it can aid in assessing the value of a plaintiff’s claim for personal injury damages both at trial and in settlement discussions. It can be specifically useful when dealing with a plaintiff who claims that their everyday social activities have been compromised. For example, in the Ontario case Kourtesis v. Joris (a case defended by Joseph Masterson from our London office) Justice Browne allowed Facebook photos into evidence and ultimately concluded, based on the strength of the photos, that the plaintiff did in fact enjoy life and, contrary to testimony given by her and her family, she continued to enjoy an “active social life.”
In another case heard in this province, Goodridge (Litigation Guardian of) v. King, Justice Platana concluded that the scarring on the plaintiff’s face did not substantially interfere with her everyday life. Justice Platana based this finding, in part, on the fact that the plaintiff continued to socialize and date, as evidenced, in part, by Facebook information. The judge also relied on the fact that the plaintiff went to the extent of providing her picture on Facebook.
Of course, there are those who will say that an individual’s privacy interests should win out and Facebook evidence should not be allowed in court. As someone who practises primarily on the side of the defence, I would say that any invasion of a person’s privacy is minimal and outweighed by the defendant’s need to assess and defend the case against them. A plaintiff cannot be permitted to portray incompatible version of themselves — one in court and one on
Facebook — and then deny a defendant the right to access both versions. There is case law to suggest that judges agree. In Murphy v. Perger, Ontario Superior Court Justice Rady allowed Facebook evidence, explaining: “Having considered these competing interests, I have concluded that any invasion of privacy is minimal and outweighed by the defendant’s need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.”
As Facebook’s popularity continues to grow, so too will its impact on all manner of litigation. Despite its obvious value, there are no clear-cut rules for using Facebook as trial evidence, and the manner in which it can and will be used is only just beginning to take shape. We need our courts to address this issue, sooner rather than later, to provide guidelines for obtaining, preserving, and using Facebook evidence. Otherwise, we are left with the uncertainty of proceeding on a case-by-case basis.
So, if one of your colleagues asks, you now have a justifiable reason for updating your Facebook status at work.
Illustration by Thomas Fuchs