More Libel and the Internet

Wow! If you’re going to do something bad watch out! Facebook, text messages, even Twitter will hang you.

Remember the recent conviction of M.T. (a juvenile) in the murder case of Stefanie Rengel. The text messages cinched it:

D.B. (a co-accused juvenile) asked her on MSN, “What about Stef?”

“Bang, bang.” M.T. responded.

“I need a bang, bang first.” He said. “I want to bang you.”

“I want her dead D,” M.T. replied. “We’ve been through this.”

In the current Bandidos Bikers murder trial in St. Thomas one Bam Bam Solerno was murdered in a grizzly manner. The crown attorney will be relying on e-mails retrieved from computers seized from the Bandidos. Everybody has a computer.

Including Twitter, all these things can be traced and they are discoverable.

Your client, brimming with innocence, is more than likely a blabber-mouth and I mean blabber!

The society of e-mailers and Facebook users have a whacky belief that their casual musings are inviolate, free-for-all and beyond the reach of the law.

I have friends in the insurance bar who immediately cruise Facebook to track the happy musings of a plaintiff who in his or her pleadings is despondent, life ruined, never to smile again.

Well Facebook because the plaintiff is so important available to the world and therein cheerily broadcasts thoughts and images, happy ones, irreverent ones, screw you ones, far from the madding depression pleaded in the Statement of Claim. Pray the gabby plaintiff has a Facebook available to the world!

Even if the Facebook is limited to a few choice confidants the court may show an avid interest. See the endorsement of Justice D. M. Brown in Leduc v. Roman 2009 CanLII 6838 (ON S.C.) dealing with an appeal from the decision of Master Dash on a motion to compel production of the plaintiff’s Facebook webpage:

[2] John Leduc was involved in a car accident on February 7, 2004, in Lindsay, Ontario. In this action he claims that as a result of the defendant’s negligent driving his enjoyment of life has been lessened and the accident caused limitations to his personal life …

[8] … (i) the Facebook profile pages were “documents” and (ii) they lay within the control of the plaintiff. …

[23] 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 …

[31] Facebook … is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.

[32] A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action.

Brown, J. ordered production.

Website owners may be compelled to turn over information about the real identity of anonymous posters of libelous slurs. See the decision of Kershman, J. on a motion in Warman v. Wilkins-Fournier 2009 CanLII 14054 (ON S.C.) for an order compelling documentary production:

[1] The issue in this case is whether the defendants should be required to produce relevant documentary information either identifying or that could assist the plaintiff in identifying eight John Doe defendants in this case [who had posted nasty things].

[3] … documents include but are not limited to:

(a) the email addresses and all personal information the John Doe defendants used and submitted to freedominion.ca to register their access accounts, and/or profiles in the freedominion.ca site forum;

(b) the Internet Protocol (“IP”) addresses of the computers used to establish the accounts in question.

(c) the IP addresses the John Doe defendants used when making the specific postings identified in the Statement of Claim;

[11] In my view, the Rules of Civil Procedure impose a high standard of discovery upon the litigants.

Kershman, J. quotes BMG Canada 2004 3 F.C.R. 24 at paragraph 39:

However while the law protects an individual’s right to privacy, privacy cannot be used to protect a person from the application of either civil or criminal liability. Accordingly, there is no limitation in PIPEDA restricting the ability of the Court to order production of documents related to their identity.

Kershman, J. ordered production.

The Warman decision is under appeal.

In an article published in the March 16, 2009 edition of The Star entitled “Canadian privacy rights buried in the fine print” Michael Geist writes:

Scott McNealy, the former CEO of Sun Microsystems Inc., has achieved considerable notoriety for having warned Internet users 10 years ago that “you have no privacy, get over it.” …

Geist pointed out in the article that customer name and address information with IP address data could render the information sensitive. Nevertheless, it could be disclosed “… without a warrant, since the customer had consented to the Rogers Acceptable Use Policy, which warns of possible disclosure to law enforcement without a court order.” Professor Geist went on to say:

These decisions place the spotlight on the fact that customer privacy on the Internet is not guaranteed by national privacy law. The law leaves the disclosure decision in the hands of the organization that has collected the date, which can choose whether to turn over personal information in certain circumstances without a warrant.

… the most Internet-focused organizations such ISPs have drafted user agreements in which their customers have consented to such disclosure policies.

Welcome to the wide, wide world of discovery!