On Law and Facebook

With the rise of web-based social networking services such as Facebook and Myspace, the massive collection of personal information collected by these sites has brought up some interesting legal issues around the world. The most common legal issues surrounding sites like Facebook involve questions about 1) privacy issues, and 2) what is the role of a person's personal pages in legal proceedings?

Is the information actually private?

While much has been made about Facebook trying to change its terms of service, and then backing down in the face of a large grass-roots opposition by its users, there have been legal and media challenges as well. Back in May, 2008, for instance, The Canadian Law Clinic filed a complaint alleging that Facebook's terms of service violated Canada's privacy laws. Similarly, news outlets have been warning people about the lack of privacy on sites like Facebook and Myspace for a while now.

On a more personal level, the lack of privacy of the information on personal Facebook pages has affected a few of my friends. When I was still in law school, the school's career office sent out warnings to the students that employers had been looking at Facebook and Myspace pages:

Dear Students:

We know that blogs and social networking websites such as Friendster,
MySpace.com, and Facebook are getting to be a fact of life, but
employers have become quite savvy in their research of potential
candidates. You should operate under the assumption that anything on
the web written by or about you will be discovered by a potential
employer. All of this is information that can be factored into an
employer's hiring decision. Quite a number of employers have told us
that they are now using these sources as a device to screen
candidates.

A student who uses a racy picture or a byline of "Party with your
pants off!"* or who describes him/herself as a "semi-stoner"* might
face questions from a more traditional employer. Even comments from
friends posted to your site can factor into the equation. If you are
going to post, we encourage you to keep your material as "clean" as
possible and consider using any privacy protection that the site
offers.

*We found this material in a very quick search on MySpace.

It turned out that a few students had even had their employment offers from firms rescinded due to inappropriate information on their social networking pages.  Always looking out for its student, my law school proceeded to actually review every student's pages and then gave specific warnings to anybody who posted anything "objectionable."

It appears that feelings about privacy are still in the process of adapting to the enormous increase in relatively available personal information posted on the web, and it will be interesting to see how this all shakes out in the future.

How can the information on social networking sites be used in legal proceedings?

A less "sexy" issue, but one that is increasingly relevant in today's world, are questions about the role of the information contained on social networking sites. There have recently been a number of cases testing the limits of using personal information as evidence and whether the contents of social networking pages are discoverable.

For example, in TV v. Union Township Board of Education, the defendant in the emotional distress case tried to get the court to order the plaintiff to give the defendant access to the plaintiff's Myspace and Facebook pages, with the expectation that comments posted on the pages would show that the plaintiff was not emotionally distressed. The Union County, New Jersey Superior Court Judge made a preliminary ruling that personal social networking pages are only discoverable if there is a particularized showing that the information is relevant, due to privacy concerns.

On the other hand, the Ontario, Canada case Leduc v. Roman, goes the other way and finds the contents of Facebook pages discoverable. This is because:

a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others.  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.

These first few cases are serving as test cases for the inevitable adaptation of the law to the times, and the law WILL adapt. Witness that lawyers in Canberra, Australia can now serve process on defendants via Facebook. I guess the steady march of progress continues on. 

Comments

[Christine Ngo]

Thanks Derek for a good read! The legal and social issues involving online community will continue to makes headline for some time to come. The law indeed must adapt. I appreciate how our legal system leaves room for such adjustment to be made.

My career counselor at Hastings, Sarah Tigerman, even recommended me using Hastings email address while contacting potential employers instead of personal emails address to keep things separate from personal life. I thought we're very lucky to have one of the best group of career advisors of all.

Cheers,

Christine