Pamela Pengelley surfs the Internet at her Toronto office. She is the author of the cyber-law blog cyberinquirer.com.SAMI SIVA
Karen Schuster was suing her insurance company after a car crash that she said left her unable to do heavy housework, tend to her garden, snowmobile, go horseback riding and play tennis, golf or "winter sports" as she used to, according to court documents.
Her insurer, Royal & Sun Alliance Insurance Co. of Canada, looking for evidence that might contradict her story, went to a Brampton, Ont., courtroom last summer. Without her knowledge, Royal & Sun asked a judge to order that she preserve the contents and photos on her Facebook page, and then hand them over, including the parts of her page was set to "private" that could only be viewed by her 67 approved friends.
In October, Mr. Justice David Price denied the insurer's request, ruling that Royal & Sun had failed to prove the page included relevant material, such as photos showing Ms. Schuster engaged in physical activities.
"There are many good reasons unrelated to litigation that people may have to withdraw documents from their friends' view," the judge writes. "Their right to do so should not be lightly interfered with."
The decision is one of a handful of rulings in civil cases from the past year that show Canadian courts are starting to grapple with the issues posed by social-networking sites such as the well-established Facebook, Twitter or Google's newly launched Buzz. And legal experts say the jury, so to speak, is still out on precisely how the sometimes fusty legal world will adapt to the tweets and status updates of the 21st century.
Pamela Pengelley, a lawyer with Cozen O'Connor LLP in Toronto who recently started a cyber-law blog (cyberinquirer.com), said lawyers and judges have been surprisingly slow to bring Facebook and social networking sites into the courtroom. "These things have been around for a long time and it's only last year that we first saw a motion on the issue," Ms. Pengelley said. "… It's been long established that electronic documents can be relevant. That's nothing new."
In Ms. Schuster's case, the judge's decision scolds the insurer's lawyers for failing to ask the plaintiff to produce her Facebook page as part of her sworn affidavit, or to bring up Facebook in her cross-examination. According to the written decision, Royal & Sun only learned of the existence of a Facebook account after they hired a private investigator.
But Judge Price decided to cut the insurer some slack, allowing its lawyer to cross-examine Ms. Schuster again because "Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it."
After a similar personal injury decision earlier last year in which an Ontario judge ordered up the release of a Facebook page, Ms. Pengelley said some lawyers started demanding Facebook photos in every case.
Still, the law isn't supposed to treat Facebook any differently from analogue photos or even pen-and-paper diaries, which judges can order to be produced in such cases. Yet personal injury lawyers rarely ask for family photo albums, Ms. Pengelleysaid. "Photographs exist whether you've got a Facebook page or not," Ms. Pengelley said. " … It's just Facebook is right now in the public consciousness as this big issue."
In Ontario, any future similar fights over Facebook in civil cases will be subject to the province's new rules of civil procedure, which took effect Jan. 1. The updated rules narrow the scope of what documents both sides in a civil suit are required to cough up during the process known as discovery, before a trial.
Under the old rules, any document deemed to have a "semblance" of relevance was fair game. Now, the new wording restricts this to merely "relevant" documents.
The change "sounds like a strange distinction to lay ears," said Thomas Sutton, a partner in McCarthy Tétrault LLP's litigation group in Toronto. "But to lawyers that actually can mean a lot."
Essentially, courts in civil cases can only demand the production of private Facebook pages, or any other document, if the material is directly relevant to the case.
"It's not a free-for-all," Mr. Sutton said. "There are protections."
Ontario's reforms were meant to address the spiralling cost of civil litigation. The increasing complexity of cases has only been exacerbated by the vast amount of electronic documents now to be found in hard drives, each of which can hold millions of pages.
Clifford Shnier, a lawyer and consultant on electronic documents, said the buzz around Facebook cases is nothing new. Courts have been grappling with the sheer amount of electronic documents in civil litigation since business really went digital in the mid-1990s.
"There's always going to be a new way that 'the Internet changes everything,'" said Mr. Shnier, president of ESI Specialists Inc. in Toronto. "And this is the newest way."