On January 9, 2011, Conan O’Brian tweeted: “Just saw ‘Storage Wars,’ where people bid on items in storage containers. Mankind is two months away from being completely out of ideas.”

In the past decade, we have witnessed an incredible movement on the internet towards people embracing opportunities to share information with others: information about their lives, their families, their thoughts, opinions, feelings, vacations, jobs, friends, likes and dislikes - everything you ever wanted to know about a person can often be found online, mixed in with everything you never wanted to know about a person. 

It is, in short, a global revolution of how people communicate.

In July of 2010, only six years after its inception, Facebook®, an online social networking application which allows users to create a personal profile to share with others, boasted a membership of over 500 million users.  Some perspective for you: the population inhabiting Facebook now equals that of the United States, Japan and Germany combined. 

Twitter®, an online blogging tool which allows users to post or ‘tweet’ updates (in 140 characters or less) is on pace to reach 200 million users in the near future. 

On Flikr®, a photo sharing application, an average of 3000 photos per minute are uploaded every day by people around the globe.

This ability to share information and connect with others is not a new concept, but has certainly become mainstream, and people everywhere, young and old, are ‘plugging in’ to keep in touch. 

Does this global revolution mark the end of privacy?  Or are we in an era where privacy is becoming a self-regulated concept? 

Understanding limits to online privacy is key to protecting your personal information.  It is essential to protecting your professional and personal reputation, and to avoid legal claims arising from what you publish and distribute on the web.

Controlling your internet presence is fundamental.  The scope of privacy on the web has dramatically changed.  Every post made on the internet, via email, listserves, blogs, message boards, or social networking sites, is a permanent written record attributable to the writer and available for use and reproduction by anyone with access to it.  It is not enough to use basic ‘privacy controls’.  A statement made to a friend over coffee is limited to those who hear it, and may be repeated, but no record of the actual statement exists.  A statement made on the internet does not have these limitations: any user who reads it can copy, flag, link or otherwise reproduce the text and attribute the reproduction to the original writer.

Today’s internet culture is to fight speech with speech.  Tempers flare and word wars rage amongst faceless opponents; users often resort to ridicule and harassment of those that disagree with their points of view.  

Today’s internet culture is also to express one’s inner monologue: many users’ normal postings document their daily activities, thoughts, and opinions. 

The majority of this information is shared on a real time basis, without real consideration: the time required to type a post is often greater than the time spent on the thought put into it.   The ramifications of this phenomenon of instant communication can be quite severe.  

Defamation  is communication about a person (including a corporation) that hurts the person’s reputation. The communication must be made to other people, and can be written, which is called libel, or spoken, which is called slander.

The law does not protect one’s injured pride; it protects reputations, not feelings.  On the internet, users need to be aware of their exposure to libel claims resulting from information they have shared with others, and their exposure where such information is further distributed to a broader, perhaps unintended, audience. 

Defamation1 competes with a person’s protected right to free speech.  The law works to balance these competing rights, protecting statements rightfully made regardless of reputational damage caused.  The most common defences to a claim of defamation are:

1.         truth or justification: protects statements of fact.  A statement may hurt your reputation, but if it is true, anyone who says it has a valid defence.

2.         absolute privilege: protects certain statements made within the judicial or political systems (i.e. statements made in Parliament and statements made as evidence in a trial or in court documents).  The rationale is to allow people to speak freely in our justice and political systems without litigation concerns. 

3.         qualified privilege: protects those statements made in good faith, and without malice, in a situation where one’s qualified opinion is sought.  As an example, a prospective employer asks for a reference of a former employee from the former employer.  The former employer can give an honest opinion (without malice) to the prospective employer, who has a legitimate reason to hear the opinion.  

4.         fair comment: protects the right to be free to comment – even harshly – about issues of public interest, as long as such comments are honest statements of opinion, based on fact, and not malicious.   As an example: a blogger calls a politician a hypocrite, and references the fact that the politician has said he supports tax cuts but votes in favour of tax increases. 

5.         responsible communication on matters of public interest: protects statements and allegations made by journalists – even if they are not true – where there is a public interest in distributing the information to a broad audience, and where the news is urgent, reliable sources were used, and an attempt to report both sides was made.  This is a new defence created by the Supreme Court of Canada in its 2009 decision of Grant v. Torstar Corp.2   The court defined ‘journalist’ broadly to encompass bloggers and anyone else “publishing material of public interest in any medium”.

The internet culture provides multiple forums under which users can offend libel laws, in Canada and in other jurisdictions.  The number of potential defendants and future plaintiffs is unsettling.  Even more unsettling is that a statement which one might feel comfortable sharing amongst friends can parlay into libel litigation when shared, arguably without malicious intent, on the web. 

Amanda Bonnen, 25, lived in a Chicago apartment owned by Horizon Realty Group.  In an exchange over Twitter with a friend, Amanda wrote, “You should just come anyway.  Who said sleeping in a moldy apartment was bad for you?  Horizon Realty thinks its ok.”  Horizon sued, alleging that Bonnen “maliciously” and “wrongfully” published the Tweet, and allowed it to be distributed throughout the world.  Bonnen’s statement of defence allegedly included the following: “40.55% of Tweets are pointless babble”, and Bonnen’s comment was an “off-the-cuff reflection or opinion”, devoid of verifiable facts and asserting nothing more than what Bonnen believed Horizon thought.  The judge agreed, and dismissed the action in January of 2010.   

Not all libel actions are dismissed so readily.  In Ontario, comments posted on Lawbuzz, an online legal discussion forum, resulted in the termination of the Lawbuzz website and four lawyers being named in a libel lawsuit brought by B.C. web-based company AdviceScene, in the spring of 2010.  AdviceScene alleged the lawyers made disparaging and damaging remarks about the company, whose website connects members of the public with features such as free legal advice, information from lawyers, legal news releases and a lawyer directory. 

One of the posts in question, allegedly written by Ontario litigator Russell Howe, reads: “Anonymous legal advice is a crock.  If you really want to give legal advice and are qualified to do so, put your money where your mouth is.  Too many cowards on the Internet as it is.”   Howe, who defended AdviceScene’s claims against him, submitted that his comment(s) were written in response to other user comments posted on Lawbuzz, and did not reference AdviceScene at all. 

The line between libel and freedom of expression is often blurred, and the number of online forums available simultaneously allow users to reach an enormous audience, while creating mass opportunity to commit libel. 

But libel claims are not the only thing of which web users need to be mindful.  Users should always assume the meaning and intent of their words will be lost in translation, and what sounds like a harmless joke to one reader will likely read very differently to another. 

In Florida, 2010, a high school senior was expelled following his posting of a status update on his private Facebook profile, in which he colourfully stated that he hated his English teacher, wanted to kill her for failing him, and wished she would die before Friday’s final exam.  A parent of another student reported the comment to the school and the local authorities, both of which took the ‘death threat’ seriously.  Although no formal charges were laid (at the request of the teacher), the youth, a known prankster with no violent history, was expelled.  

This youth is one of many who have suffered serious consequences for (so-called) off-the-cuff remarks thoughtlessly posted on semi-private forums. 

We must all remember that electronic information sharing, with very little exception, erodes basic expectations of privacy.  Just because you have engaged certain ‘privacy’ features on your Facebook account or other media outlets doesn’t mean you can safely treat the content published as if no one other than those whom you have directly permitted access will see, read or use it.  A private diary is something to keep locked under your bed, not published on the internet. 

In Ontario, parties to litigation have a duty to disclose, and where requested produce for inspection, relevant documents in their possession.  The case law has established that photographs and webpages are ‘documents’ and must be disclosed. 

In the Ontario decisions of Murphy v. Perger3  and Leduc v. Roman4, the courts considered whether the private contents of a Facebook profile had to be produced for discovery during litigation proceedings.

In Murphy, a tort action following a motor vehicle accident, the plaintiff claimed damages for pain and suffering and loss of enjoyment of life.  The defendant submitted that photographs posted by the plaintiff on her Facebook page were relevant to the proceeding and the defence’s arguments countering loss of enjoyment of life, and requested production of photographs posted on the plaintiff’s webpage.  The plaintiff had a private Facebook profile, but the public portion of her profile gave access to certain photos, which fact formed the defendant’s belief of the existence of relevant photos on the private profile. 

The judge first assessed whether photos of the plaintiff were relevant to the proceedings, and concluded they were, because: i) the plaintiff had submitted photos of herself prior to the accident as part of her evidence; ii) Facebook is a social networking site where users post photographs; and iii) the plaintiff’s public webpage contained photographs.

The judge then assessed the plaintiff’s privacy rights, and held that any invasion of privacy was minimal and was outweighed by the value of producing the photographs as evidence.  The judge commented on the scope of privacy, and stated: “The plaintiff could not have a serious expectation of privacy given that 366 people had been granted access to the private site”.   

In Leduc, a tort action similar to Murphy where loss of enjoyment of life was claimed by the plaintiff, the court further restricted one’s expectation of privacy.  In Leduc, the plaintiff’s public Facebook page only contained his headshot and name, and all other material was restricted and accessible only by his approved Facebook friends.  Unlike Murphy where the court was able to confirm the plaintiff used her website to post photographs from her public profile, the defendant and the court in Leduc could only assume that the plaintiff’s Facebook page contained photographs. 

Initially, the defendant’s request to have the plaintiff’s Facebook profile preserved and all pages produced was denied on the grounds that it was a ‘fishing expedition’, and any conclusion the plaintiff’s webpage contained photographs was speculative. 

On appeal, the judge noted that a motion for production requires tangible evidence that relevant and undisclosed documents exist.  The judge observed that Facebook was universally used to share information with others about one’s personal life, and it was reasonable to infer that the plaintiff’s Facebook profile contained some content relevant to the litigation, and the plaintiff’s loss of enjoyment of life.

Interestingly, the judge held that merely because a webpage was private does not affect one’s obligation to disclose relevant documents in one’s possession.  The judge stated: “A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publically available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.”

However, the fact that the plaintiff had a Facebook profile did not entitle the defendant access to everything posted, but only that information which would be relevant to the issues at trial.  Where information posted was relevant, it was required to be disclosed.

Without a doubt, the internet has broadened our ability to communicate with others around the globe, and empowered users to develop their global voices.  But in terms of our personal expectations of privacy and our ability to use our voice unchecked, every user must understand the audience with whom they are communicating.  The idea of a one-on-one conversation on the internet does not have the same meaning it once did, and information shared with friends may end up being information shared with hundreds or thousands of others.

 

[1] Defamation can be a crime under the Criminal Code, but only rarely. In the context of this article, only civil defamation is discussed.

[2] 2009 SCC 61

[3] 2007 O.J. No. 5511 (S.C.J.) (QL)

[4] 2009 CanLII 6838 (ON S.C.)