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When Private Becomes Public

Posted by Stacey England on 2 March 2015

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The recent Nova Scotia Supreme Court decision, Conrod v Caverley, has offered guidance on when the court will order a plaintiff to release the contents of their private Facebook profile. 

Conrod was hurt in a motor vehicle accident between her vehicle and a dump truck driven by Caverley.  Part of her claim was that her ability to participate in recreational and social activities was now limited; she would only see friends occasionally when they would visit her home, and that even walking resulted in significant pain and discomfort.  She also claimed decreased concentration and focus, which interfered with the amount of time that she was able to spend on social media pages, such as Facebook. 

In order to assess the merit of Conrod’s claims, the defendants wanted access to her private Facebook profile.  They argued it was reasonable that, based on the information available on her public page, her private profile would contain information on the issue of whether she was no longer able to participate in recreational and social activities.  The defendants also wanted her Facebook usage history, which they claimed was relevant in determining whether she suffered decreased concentration.

Justice McDougall found that before a Chambers judge can order production of material pursuant to Civil Procedure Rule 14.12 the defendants must prove that any material sought meets the standard of “trial relevancy”. 

The usage history was held to be relevant to whether her injuries affected her concentration, it was easy to obtain, and there was no risk that this information would reveal any potentially sensitive personal information.  Therefore it was order to be produced. 

Conversely, Conrod’s private Facebook was held not to be relevant.  Instead of assuming that there is certain information contained in the profile based on the contents of a “typical” profile, the defendants must show that the specific profile is likely to contain relevant information.  Here they did not.  The photographs that were available on her public profile were small and of poor quality.  There was no way to determine where and when the pictures were taken.  Many did not include her, and those that did failed to show anything that was inconsistent with Conrod’s stated abilities.  In essence, nothing present on her public profile indicated that information found on her private profile would be relevant to her claim or would contradict her evidence. 

This is not to say that an order to produce the contents of a private Facebook profile will never be made.  Whether the contents of the profile will be relevant will depend on the nature of the claims and the information found on the public profile.  Had the photographs on the public profile clearly showed Conrod socializing outside of her home or participating in physical activities, or had there been wall posts that discussed social events she had attended or was planning on attending, it is likely that the decision would have been different.