Your Life as an Open (Face)book –
The Legal Impact of Online Social Networking
by Brendan Navin Siva
I have a confession to make.
Although I don’t have a MySpace account, and I have lost all interest in Facebook, I tweet on Twitter like a madman, and despite feeling that I should stop, I can’t!
The power of social networking sites that have mushroomed over the years like Facebook, Friendster, MySpace and Twitter should not be underestimated. As of late last year, Facebook boasted 200 million users worldwide. MySpace has over 100 million users while the new kid on the block, Twitter, has a fairly small but growing number of users in the 4-5 million range with over 14 million unique visitors[1].
The attraction and popularity of such sites are not hard to understand. Human beings are social beings. We share thoughts and express feelings to and with one another. Some of us who are shy and reluctant to share intimate and personal information on an intangible medium consisting of millions, tend to open up only with those close to us. The enormous success of social networking sites can be attributed to the fact that they replicate such an environment of closeness and intimacy by allowing you to connect with close friends and your ‘meatspace’ social circle, online. At the same time, these sites dispense with the ‘burden’ of meeting face to face and allow users to ‘meet’ virtually at any time and from wherever they may be through hassle free, bite-sized information like a 140 word Tweet, or a Facebook status update.
However, all good things come with a price. The privacy and intimacy we think we share with our friends on these sites is often a very clever and artificially generated facade. Those who are not selective and careful with what they say and what they post on these sites live their lives like the proverbial open book. Their diary entries and personal thoughts remain archived somewhere in the recesses of the Internet and retrievable by any half decent private investigator, busybody or stalker. The information you upload can be used against you in the future and in many ways not conceivable at the time of posting. Words like ‘Privacy settings’ give a false impression of security and privacy, when there really may not be any such concept at all sustainable in law when it comes to dealing with these sites. There are already companies offering investigative services targeted specifically to what is being said and posted online on these social networking sites.
It is amusing to watch how the legal landscape is developing when it comes to dealing with information placed on such sites.
Criminal defence lawyers in America have started the ball rolling. In March of 2009, in the State Supreme Court in Brooklyn, New York, a man went on trial accused of possession of a loaded firearm. The officer who arrested him was Vaughan Etienne. Mr. Etienne gave evidence as a prosecution witness at the trial. He testified that the gun was discovered in the possession of the accused when he was apprehended on a stolen motorcycle. The accused claimed that Mr. Etienne and his partner beat him up and the gun was planted on him by the police officers. The defense attorney led evidence of Mr. Etienne’s many comments made on MySpace and Facebook. His mood setting on MySpace was ‘devious’. One of his status updates on Facebook was “Vaughan is watching Training Day to brush up on proper police procedure”[2]. Mr. Etienne also posted comments on video clips of police arrests saying things like “If you were going to hit a cuffed suspect, at least get your money’s worth … ”. The jury was told that all this supported the accused’s version of events and raised doubt as to the credibility of Mr. Etienne’s evidence. The jury acquitted the accused of felony possession and only convicted him for resisting arrest.
In Canada, photographs and postings obtained from social networking sites have been ordered to be adduced as evidence in Court, essentially to refute or contradict the position taken by a person in court proceedings.
In the Ontario Supreme Court[3], Justice D.M. Brown went one step further. She considered the legal implications of privacy settings on Facebook. She proceeded to order the disclosure of the contents of a plaintiff’s Facebook profile, in a motor vehicle accident case. The plaintiff in that case was claiming that he was injured in a motor accident as a result of the defendant’s negligent driving. He also claimed that, as a result of the accident, his enjoyment of life had lessened and the accident caused limitations to his personal life. The defendant applied for disclosure of information contained in the plaintiff’s Facebook page, primarily to contradict the plaintiff’s contention of loss of enjoyment. When the application was heard at first instance, the Court held that Facebook profile pages were ‘documents’ and they lay within the control of the plaintiff. But the application was refused as it was speculative. The plaintiff had set his privacy options to limit access to his posted material to friends only. The defendant did not know what was contained in the said pages and therefore could not say it was relevant to the case. But Justice Brown allowed the appeal. She held that disclosure would normally be allowed if the postings were on a publicly accessible Facebook profile. She then proceeded to consider those Facebook pages with limited access:-
“From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it 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. 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.”
Justice Brown went on to say that:-
Justice Brown went on to say that:-
“To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, 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.”
In a similar case[4], Justice Rady held that concerns of privacy were minimal and were outweighed by the defendant’s need to have the photographs in order to assess the case. The Judge stated that the plaintiff ‘could not have a serious expectation of privacy given that 366 people have been granted access to the private site.’
It is undeniable now that what users think may be a closed and private environment to express their thoughts and feelings is not so private after all. This is especially important when you take a position or put your credibility in question in a court of law, as what you say and post on these social networking sites is not strictly off limits anymore.
There are numerous pending lawsuits across the world relating to fake MySpace and Facebook pages which have caused harm and injury to the reputation of the persons named in them. One of them has resulted in a judgment in favour of the victim. In Applause Store Productions Ltd and Firsht v Grant Raphael [2008] EWHC 1781 (QB), the English High Court ordered the defendant to pay damages of £22,000-00 to the plaintiff. In this case, Grant Raphael had created a fake Facebook page of his schoolmate Mathew Firsht in June 2007. While on it, Mr. Raphael posted false information about Mr. Firsht’s whereabouts, activities, sexual orientation and political views. He went on to say that Mr. Firsht and his company were untrustworthy and owed large sums of money to various organisations/people. Deputy Judge Richard Parkes QC awarded damages to Mr. Firsht in the sum of £15,000-00 for libel and £2,000-00 for breach of privacy. His company was awarded £5,000-00.
Further, if users of these social networking sites are not careful and continue to be flippant and reckless in what they say or post on these sites, libel lawsuits will become rampant and generate new briefs for lawyers all around the world.
Singer and celebrity, Courtney Love, is known by many for a variety of reasons (not all of them very admirable). She will now also be known as the first person to be sued for libel for what she posted on Twitter and MySpace. Fashion designer, Dawn Simorangkir, is suing Ms. Love. In January of 2009, Ms. Love apparently posted an entry on MySpace saying “I am the one buying Boudoir for crazy money”[5]. On Twitter, Ms. Love allegedly posted “… the felonious Dawn/Boudoir Queen witnessed stealing 2 MASSIVE army bags ..” and continued further by calling Ms. Simorangkir “a nasty, lying hosebag thief”, having “a history of dealing cocaine” and much more. Ms. Love is also accused of posting comments on a fashion site calling Ms. Simorangkir “the nastiest lying worst person I have ever known .. evil incarnate, vile horrible lying %$&*#.” Ms. Simorangkir is suing in the Los Angeles Superior Court for libel, invasion of privacy, infliction of emotional distress and intentional interference with her business. What is reported to have been stated in the court papers also deserves mention. Eschewing normal, conventional drafting principles, Ms. Simorangkir’s complaint pleads “Whether caused by a drug induced psychosis, a warped understanding of reality, or the belief that her money and fame allow her to disregard the law, Love has embarked in what is nothing short of an obsessive and delusional crusade to terrorize or destroy Simorangkir, Simorangkir’s reputation and her livelihood”.
In a similar case[4], Justice Rady held that concerns of privacy were minimal and were outweighed by the defendant’s need to have the photographs in order to assess the case. The Judge stated that the plaintiff ‘could not have a serious expectation of privacy given that 366 people have been granted access to the private site.’
It is undeniable now that what users think may be a closed and private environment to express their thoughts and feelings is not so private after all. This is especially important when you take a position or put your credibility in question in a court of law, as what you say and post on these social networking sites is not strictly off limits anymore.
There are numerous pending lawsuits across the world relating to fake MySpace and Facebook pages which have caused harm and injury to the reputation of the persons named in them. One of them has resulted in a judgment in favour of the victim. In Applause Store Productions Ltd and Firsht v Grant Raphael [2008] EWHC 1781 (QB), the English High Court ordered the defendant to pay damages of £22,000-00 to the plaintiff. In this case, Grant Raphael had created a fake Facebook page of his schoolmate Mathew Firsht in June 2007. While on it, Mr. Raphael posted false information about Mr. Firsht’s whereabouts, activities, sexual orientation and political views. He went on to say that Mr. Firsht and his company were untrustworthy and owed large sums of money to various organisations/people. Deputy Judge Richard Parkes QC awarded damages to Mr. Firsht in the sum of £15,000-00 for libel and £2,000-00 for breach of privacy. His company was awarded £5,000-00.
Further, if users of these social networking sites are not careful and continue to be flippant and reckless in what they say or post on these sites, libel lawsuits will become rampant and generate new briefs for lawyers all around the world.
Singer and celebrity, Courtney Love, is known by many for a variety of reasons (not all of them very admirable). She will now also be known as the first person to be sued for libel for what she posted on Twitter and MySpace. Fashion designer, Dawn Simorangkir, is suing Ms. Love. In January of 2009, Ms. Love apparently posted an entry on MySpace saying “I am the one buying Boudoir for crazy money”[5]. On Twitter, Ms. Love allegedly posted “… the felonious Dawn/Boudoir Queen witnessed stealing 2 MASSIVE army bags ..” and continued further by calling Ms. Simorangkir “a nasty, lying hosebag thief”, having “a history of dealing cocaine” and much more. Ms. Love is also accused of posting comments on a fashion site calling Ms. Simorangkir “the nastiest lying worst person I have ever known .. evil incarnate, vile horrible lying %$&*#.” Ms. Simorangkir is suing in the Los Angeles Superior Court for libel, invasion of privacy, infliction of emotional distress and intentional interference with her business. What is reported to have been stated in the court papers also deserves mention. Eschewing normal, conventional drafting principles, Ms. Simorangkir’s complaint pleads “Whether caused by a drug induced psychosis, a warped understanding of reality, or the belief that her money and fame allow her to disregard the law, Love has embarked in what is nothing short of an obsessive and delusional crusade to terrorize or destroy Simorangkir, Simorangkir’s reputation and her livelihood”.
Put simply, social networking sites are not litigation free zones. The traditional elements required to prove a libel are surprisingly flexible enough in today’s environment to apply to words and statements posted on such sites. If you say something defamatory, chances are you will be sued for libel.
In countries like Australia and New Zealand, the courts have also embraced and adopted these new social networking sites as legitimate means of service of legal process against errant and ‘vanishing’ litigants.
In the High Court of Wellington New Zealand, Justice David Gendall granted an order to serve a defendant in a civil case via his Facebook page after he was satisfied that all conventional methods of service of legal process on the defendant had been unsuccessful and his exact whereabouts in the United Kingdom could not be ascertained.
In Australia, the Supreme Court of the Australian Capital Territory granted an order allowing the plaintiffs in a foreclosure action to serve a default judgment by way of a private email to the defendants at their Facebook page[6]. There was evidence that the defendants could not be located using conventional means at their home or workplace or through any of their email addresses. There were 11 unsuccessful attempts to serve. The Court allowed this method to be used to inform the defendants of the entry of and the terms of the default judgment. Although there was a previous decision of the Queensland District Court in Citigroup Pty Ltd v Weerakoon [2008] QDC 174 refusing service of process via Facebook due to its unreliability and uncertainty, the ACT Supreme Court appears to have been persuaded by the fact that dates of birth and email addresses of the defendants on their Facebook profiles were correct and the Facebook profiles showed that the two defendants were ‘friends’ with each other.
Australian courts have on previous occasions exhibited a trend towards embracing technology. The Supreme Court of New South Wales has in at least one instance ordered service of legal process by way of text message or SMS.
The bottom line is this. Social networking sites are not the haven of privacy and security that some of us may have thought they were when we first started to upload our photographs, personal information and intimate thoughts and views. In such supposed informal and personal settings, people have found it easy to let their hair down and even to assume a personality that may not be one that they wish the public to see or to judge them by.
Employers too should be concerned about what their employees are posting on these sites. Employees may inadvertently be placing material or making comments on their Facebook or Twitter account that may be detrimental to the company’s interests. Postings made during the course of negotiations could potentially have an adverse impact on the negotiations itself, if discovered by the other side. Or worse, employees may be doing so on purpose with the intention to injure the company.
The risk of the material placed on such sites coming back in the future to be used against you or to your detriment is not just a possibility. In fact, it is already becoming an accepted reality, even in the historically slow-to-adapt confines of the legal world.
The writer is a member of the Bar Council. The views expressed are his and not necessarily those of the Bar Council.
(This article first appeared in Netvalue2.0, the technology section of The Edge Malaysia, Issue 753, May 4-10, 2009)
[1] This sudden burgeoning on Twitter could be largely attributed to the entry of celebrities like Oprah Winfrey, Ashton Kutcher, Larry King and much more to the new world of ‘micro-blogging’ on the ‘interweb’.
[2] Training Day is a movie starring Denzel Washington as a crooked cop and is hardly a healthy advertisement for proper police conduct.
[3] Leduc v Roman available at http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.pdf or 2009 CanLII 6838 (ON S.C)
[4] Murphy v. Perger [2007] O.J. No. 5511 (S.C.J.)
[5] Boudoir Queen is Ms Simorangkir’s fashion label.
[6] MKM Capital Property Limited v Corbo and Poyser (No. SC 608 of 2008)
(This article first appeared in Netvalue2.0, the technology section of The Edge Malaysia, Issue 753, May 4-10, 2009)
[1] This sudden burgeoning on Twitter could be largely attributed to the entry of celebrities like Oprah Winfrey, Ashton Kutcher, Larry King and much more to the new world of ‘micro-blogging’ on the ‘interweb’.
[2] Training Day is a movie starring Denzel Washington as a crooked cop and is hardly a healthy advertisement for proper police conduct.
[3] Leduc v Roman available at http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.pdf or 2009 CanLII 6838 (ON S.C)
[4] Murphy v. Perger [2007] O.J. No. 5511 (S.C.J.)
[5] Boudoir Queen is Ms Simorangkir’s fashion label.
[6] MKM Capital Property Limited v Corbo and Poyser (No. SC 608 of 2008)