Case Report – Balance favours disclosure of photographs on Facebook given number of plaintiff’s friends

In a judgement from last October, the Ontario Superior Court of Justice ordered a plaintiff in a motor vehicle suit to produce copies of her Facebook pages. The defendant successfully argued that the pages were likely to contain photographs relevant to the plaintiff’s damages claim, and was buttressed by the fact that the plaintiff had served photographs showing herself participating in various forms of activities pre-accident.

In balancing the interest in full disclosure against the plaintiff’s right to privacy, the Court stated:

Having considered these competing interests, I have concluded that any invasion of privacy is minimal and outweighted by the defendant’s need to have the photographs in order to assess the case. The plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site.

This is a very logical, traditional and compelling statement, and is very significant given the arguments now being made for a new theory of privacy that encompasses intermediate forms of disclosure – i.e. disclosures which can be made without losing a complete privacy interest in the information disclosed.

Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.) (QL).