Social Media Saturday: Facebook privacy illusory

“The fact that an individual may have restricted viewing of his/her Facebook profile to preapproved individuals is irrelevant, as courts have generally held that a party who maintains a private or limited-access Facebook profile stands in the same position as one who sets up a publicly available profile. In both cases, Facebook postings that relate to any matter at issue in an action must be identified and produced for examination.

It has also been held that a plaintiff must submit to cross-examination from defense lawyers with regard to postings made by the plaintiff on his/her Facebook account, regardless of whether the content was available to the public or not.

In reaching this conclusion, an Ontario Superior Court Justice stated that “to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a Web site, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

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