Canadian Lawyer Magazine Overview of Cases With Social Media as Evidence

Canadian Lawyer magazine today published an article by James D. Cuming and Craig Gillespie that shows that courts all across Canada have been finding that information on people's Facebook and other social networking accounts is highly relevant to litigation.

The authors, who are law partners in Calgary in the areas of class actions, medical malpractice and serious personal injury claims, summarize the key cases in which social networking information has been a key issue:

"In an action in which the claimant’s physical and mental ability to carry out tasks of daily living, to work, and to enjoy leisure activities are in issue, the information gained from user-posted photos and comments can be remarkable."

"On Facebook, a user may choose to make her profile information public, but more commonly will restrict the profile information to Facebook 'friends.' The challenge in document production arises when a party’s Facebook profile is private."

"Plaintiffs opposing production typically raise privacy as their chief concern. The courts have rejected the privacy argument on the grounds the plaintiff has already shared the information or images with, typically, several hundred 'friends' (...)"

"In summary, the case law is remarkably consistent across jurisdictions in characterizing the information posted on social networking sites such as Facebook as documents or records with potential relevance in litigation. Given the pervasive use of Facebook, plaintiff and defence counsel should be prepared to address social media as a routine part of their files."