January 25, 2018

Originally delivered at the Ottawa chapter of the International Association of Privacy Professionals Kyle M Lambert Associate d 613.691.6117 kyle.lambert@mcmillan.ca

#Served! Social media’s growing role in litigation

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Outline

Background on social media use

Big data and litigation

Social media as evidence

Social media and the law of defamation

Employment litigation and the impact of social media

Intrusion upon seclusion and other newer developments

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AUDIENCE POLL: What word comes to mind when thinking of "social media"?

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AUDIENCE POLL: What word comes to mind when you think of the law, as it relates to social media?

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Social Media Use –

Background

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Tweets, Snaps, and Statistics

76% of Canadians own / use a smart phone (StatsCan 2017)

Per Media Technology Monitor (May 2015):

67% of Canadians visited a social networking site in the past month;

• Increases to 91% among millennials

Among social networkers:

• 23% use Pinterest

• 24% use Twitter

• 31% use LinkedIn

• 93% use Facebook

Perceptions of security vary, but growing awareness of risks relating to data use

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Canada’s Privacy Framework – “Publicly Available” Information

Under PIPEDA, personal information is considered “publicly available” if it appears in:

A publicly-available telephone directory

A publicly-available professional or business directory, listing or notice

A registry collected under a statutory authority, to which there is a right of public access;

A record/document of a judicial or quasi-judicial body

A publication, printed or electronic, that is available to the public where the individual has provided the information

Not clear that social media information is captured

Commentary increasingly saying that it isn’t (see NFLD Privacy Commissioner)

In conducting searches, organizations are advised to ensure that information sought from social media is “relevant”

Note, however, that “relevant” is very broad when used in the context of civil litigation

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Big Data and Litigation

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Web 2.0 – Just When Lawyers Were Learning to Type!

Social media searches are now part of a lawyer’s basic due diligence

Own client (when opening a file)

Opposing party/parties

Availability of social media information likely means lawyers have a duty to warn clients about social media use

Corresponding duty: ensure any information gathered from social media is relevant and used appropriately

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Big Data and Nosy Lawyers

As I’ll get to, there are a variety of legal contexts in which social media information can (or must) be used

Evidence in any type of proceeding

Particularly relevant in defamation, employment law and personal injury cases

How do lawyers get access? Various available search tools:

Wayback Machine – often used by IP lawyers, but can dig for anything (can also be defeated by website creators)

X1 Social Discovery – collect from variety social media sites (FB, Twitter, etc)

• Can also target gmail, outlook.com (with permission)

• Generates hash values for authentication

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Can They Do That?

Clear that those seeking to rely on social media content for reasons other than intended by the author must tread carefully

However, as I will discuss, laws (statute and common law) protecting against misuse of otherwise private information appear more focused on the use, rather than collection of information

Lawyers, and others, must bear in mind their ethical obligations as well

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Exhibit A: Social Media as Evidence

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Basic Rules of Evidence

Social media is a developing source of evidence

Reasonable expectation of privacy vs. obligation to disclose relevant evidence

Growth in evidence volume: 2 minutes of texts can = 20 pages of evidence

The question, though, is whether there is an awareness among users that what they are writing / inputting could be relevant evidence

Convergence of public / private – this is peoples’ private lives and thoughts, but it’s on a public forum

Added concern for lawyers and clients: cannot destroy evidence:

Once a proceeding is done and social media could be “relevant”, it must be preserved

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R v. Craig – Reasonable expectation of privacy

R v. Craig (2016 BCCA 154)

B.C. Court of Appeal ruled that one maintains a reasonable expectation of privacy under the Charter of Rights and Freedoms in private instant messages sent to another user via a social networking website

What happened?

Craig (22) and EV (13) exchanged explicit messages on a site called “Nexopia”

• Craig charged with sexual interference and luring

Craig argued that his rights under s. 8 of the Charter were infringed when the Crown took evidence from EV’s account

• Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.”

Court held that the sender of messages via a social media network does maintain a reasonable expectation of privacy. In Craig’s case, the messages were originally sent to one intended recipient only; that is, in his mind, they were never meant for public consumption.

• The accounts were also protected by user names and passwords.

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Basic Rules of Evidence: Where does social media fit?

Procedural obligations

Rule 30.02(1): “Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed”

““document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form”

Therefore, parties to a civil action must disclose and produce, where relevant, all documents, which may include social media content, notwithstanding any privacy concerns

Uses at trial?

All evidence relevant is admissible, unless there is a legal reason to exclude it

Court always has discretion: probative value vs. prejudicial effect

• If evidence is of limited assistance, but could be highly prejudicial, it is less likely to be admitted

• Classic example is character evidence – “he’s a bad guy, so of course he did it”

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What Have Courts Said?

Sparks v. Dube (2011 NBQB 40)

Motion to require preservation of the plaintiff’s Facebook profile, including all photos, text, links, postings, etc.

Profile deemed “property” that can be ordered preserved

Leduc v. Romani (2009 CanLii 6838)

Leduc involved in car accident; defence attempted to use Facebook profile as evidence

“That a person’s Facebook profile may contain documents relevant to the issues in an action is beyond controversy. Photographs of parties posted to their Facebook profiles have been admitted as evidence relevant to demonstrating a party’s ability to engage in sports and other recreational activities where the plaintiff has put his enjoyment of life or ability to work in issue.”

Defendant granted a chance to examine Leduc on the basis of excerpts from his FB profile

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Godwin v. Tweeter – Social Media and Defamation

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Defamation and Social Media

Libel and slander: untrue statements (written / oral) made to third parties that are harmful to another party’s reputation

Generally, a defendant is liable whether the libellous statement was made maliciously or negligently

Several defences: truth, absolute privilege, qualified privilege (defeated by malice), fair comment, “responsible communication on matters of public interest”

The last two are most commonly applicable to “news”

Protection of Public Participation Act, 2015 - formalized the concept of a “SLAPP” suit

Social media – some of the added risks:

Viral content

Hyperlinking: must repeat the actual content to be defamatory

Olson v. Facebook Inc. (2015 NSSC 155)

Defamatory posts by anonymous FB users

FB ordered to turn over information, but information only to be used for that action

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Notable Cases

United Soils Management Ltd v Mohammed (2017 ONSC 4450)

Company attempts to sue woman for comments made in closed, private FB groups

Had reached a previous settlement over public comments

Court: this is a new form of SLAPP suit, aimed at intimidating people away from sharing these types of views on social media, even privately.

Libel action dismissed; Mohammed awarded $7,500 for infliction of mental distress

Pritchard v. Van Nes (2016 BCSC 686)

Dispute between long-feuding neighbours

Defendant posted several defamatory comments to over 2K Facebook followers; friends responded in kind

“The nature of Facebook as a social media platform and its structure mean that anyone posting remarks to a page must appreciate that some degree of dissemination at least, and possibly widespread dissemination, may follow”

A Facebook or similar user should only be liable in such situations where the original post is inflammatory and expressly or implicitly invites defamatory comment by others, or where the user actively participates, through comments and replies, in such a dialogue

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“But It Was My Home Computer” – Social Media and Employment Law

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“Dooced”

“Dooced” – To lose one’s job because of something one has written on a blog

Heather Armstrong ran a blog called “dooce.com”, wrote mainly about personal life

Fired in 2002 after writing about coworkers (did not challenge the termination)

Today, much higher probability of public postings being found, but also much more awareness about individuals’ privacy rights

Kim v. International Triathlon Union (2014 BCSC 2151)

Manager made disparaging remarks on a personal blog, including comparing a supervisor to her abusive mother

Employer terminated Kim for cause, took position that Kim should have known the disparaging social media remarks were inappropriate

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AUDIENCE POLL: What did the Court find in Kim v. International Triathlon Union?

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What Can Employers Do?

Under PIPEDA, consent to conduct a social media search is required unless the search is necessary for the purposes of establishing, managing or terminating the employment relationship

However, the candidate / employee is entitled to notice that personal information will be collected, including notice of the purposes for which the information will be collected, used or disclosed (PIPEDA, ss. 7.3 and 7.4)

Since “necessity” is hard to define, employers are generally required to limit the collection of personal information to that which is necessary for reasonable purposes

S. 4.4.1 – “Organizations shall not collect personal information indiscriminately. Both the amount and the type of information collected shall be limited to that which is necessary to fulfill the purposes identified.”

Privacy legislation also requires that organizations take reasonable steps to ensure that information collected is accurate, complete and up-to-date

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What Have Courts Said?

Lougheed Imports Ltd v. UFCW, Local 1518 (2010 BCLRBD No. 190)

Two employees fired after calling their employers “crooks” (among other things) on Facebook

Company manager was a FB friend of both, saw the posts

Terminations upheld on the basis that the postings were “serious insubordination and conduct damaging to the employer’s reputation”

Rule: Court will focus on reputational impact, as well as the nature of what is written

Wasaya Airways LP v. A.L.P.A. (195 LAC (4th) 1 (arb))

Pilot fired due to derogatory posts about the airline’s owners and customers, though he did not identify the airline by name

Termination deemed excessive, but the pilot was also found incapable of working for the airline or its customers because of the FB posts

Pilot give a 4-month suspension, but required to resign

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Privacy Punches Back – Intrusion Upon Seclusion and Other Legal Developments

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Intrusion Upon Seclusion

Jones v Tsige (2012 ONCA 32)

“One who intentionally or recklessly intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the invasion would be highly offensive to a reasonable person.”

Upper limit on non-pecuniary damages

Factors:

• Nature, incidence and occasion of the conduct

• Effect on the defendant

• The parties’ relationship

• Any distress, annoyance or embarrassment suffered by the plaintiff; and

• Pre- and post-wrong conduct

Clear that improper use of data, including via social media, could be deemed an actionable invasion of privacy

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AUDIENCE POLL: What is the upper limit on non-pecuniary (non-financial / non-punitive) damages for "invasion of privacy" in Ontario?

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Jane Doe 464533 v. ND – The grossest of privacy violations

Jane Doe is about what happens when material is posted online without consent / implied consent

What happened?

Defendant posted a private video of the plaintiff online, without permission, after assuring her that it would be kept confidential

Plaintiff suffered serious mental harm as a result

The facts supported liability for both breach of confidence and intentional infliction of emotional harm (two pre-existing torts)

Court also identified a new legal wrong: “publicly disclosing the private facts of another”. Occurs when:

(1) matter publicized would be highly offensive to a reasonable person;

(2) matter is not of legitimate concern to the public

Award: $100,000 (max allowable given Court’s rules), plus $50,000 general damages, $25,000 aggravated damages, $25,000 punitive damages, and $36,000 in costs

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Ongoing Developments – Criminal Law

Criminal Code amended in 2014 to include s. 162.1, creating the offence of “sharing an intimate image without consent”

Recognized that when people share images of an intimate nature, even over unsecure social media platforms, they retain a legitimate privacy interest in those images (R v Craig, 2016 BCCA 154)

Current judicial opinion is that there is no legitimate expectation of privacy held in messages sent over social media platforms (R v Mills, 2017 NLCA 12),

But, recognition of a privacy interest in intimate images suggests a shift in normative values in favour of privacy – especially in areas like social media and text messaging (R v Marakah, 2016 ONCA 542)

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Ongoing Developments – Civil Law

Civilly, new tort emerging through legislation in MB and AB to punish the non-consensual distribution of intimate images. This is derived from cases like Jane Doe.

Both laws passed in last two years,

Allow for damages to be awarded in cases of revenge porn, or sharing intimate images to bully someone.

There is no case law expanding on either piece of legislation, but they show a willingness of Canadian legislatures to engage with this issue, and suggest the tort could soon be seen in other common law jurisdictions as well.