The media are slowly picking up on the number of court cases that are requiring disclosure of Facebook and other social network pages in litigation. SunMedioa has a story today — see, e.g. "Social networking plays out in court" in the North Bay Nugget, and yesterday there was a story on Canoe Technology, "Facebook content showing up in lawsuits." [See also "An Obligation to Discuss Facebook During Discovery," from a couple of months ago on Slaw.]
Ian Kerr of U of Ottawa is quoted in the Sun Media story as saying this:
"The courts sometimes don't get it," Kerr said. "The tendency in judicial opinion and popular thinking is that once something is out in the public, there's no such thing as privacy anymore. But that can't be right because we all have curtains."
For Facebook users, those curtains are our privacy settings. If our home is our castle, Facebook should also be considered a walled domain, Kerr said.
Is this right? Surely the question is not one of what privacy settings one chooses to put on a set of documents that one chooses to put online, but what relevant documents one has in one’s possession and control and that the normal rules of civil procedure require one to disclose.
In other words, the party would have to disclose those documents — pictures or whatever — even if he or she had never posted them to any site, but just had them sitting in a drawer at home. There is no further invasion of privacy because they happened to be found via Facebook than if they had simply been produced.
Of course having them on Facebook makes it harder to pretend they don’t exist, but that’s not a privacy issue, in my view.
There are relevance limits to discovery requests, but not so far as I know privacy limits. Am I wrong in law, or should policy change?
Well stated. This issue is bound to come up with increasing frequency. In bringing a legal action, a party impliedly surrenders privacy over information that can be considered relevant to the action. It's really no different than medical records which would otherwise be private but which must be produced in a personal injury claim. The difficulty with Facebook is sorting out what is relevant – see http://allanrouben.com/blog/?p=32.
I wonder why judges are "ordering" people to turn over this information. I think the system would be better for all involved parties if the responsibility lied with the attorneys to find a Facebook "friend" willing to testify against someone and provide them with enough monetary incentive to actually get them to do it.
I don't like that judges are unnecessarily circumventing this option via totalitarian orders.