Thursday, November 15, 2007

Facebook Photographs Admitted Into Evidence at Ontario Superior Court

Via Facebook (where else?), I learned today of a September 2007 decision of Ontario's Superior Court of Justice that should be of interest to the province's many social networking devotees.

In the recent ruling, photographs from a Plaintiff's Facebook page were admitted into evidence at trial of an Ontario motor vehicle injury proceeding.

From the Judgment of Mr. Justice E.R. Browne in Kourtesis v. Joris:

On June 12, 2007, during trial, I made a ruling the result of which led to the introduction in evidence of photographs from a Facebook web page of the plaintiff. Submissions on costs suggest that the photographs were a determinative factor. It is clear that the Facebook photographs were an important element of the case.

The Facebook group, Facebook: Admissible in Ontario Courts provides some sage advice in response that is worth repeating:

Watch out Facebook users!

A recent Ontario court decision allowed Facebook photos to be used as evidence in a civil proceeding. In other words, the judge looked at someone's Facebook album, and then made a judicial determination on what he saw.

This makes privacy more important than ever. Invite your friends and review the few steps below to make your profile a bit safer:

  • Delete any photos that involve breaking the law. A lot of profiles include public drinking, trespass, and other things that aren't funny if a court is looking at them.

  • Do a review of your friends list. If people have added you that you don't know, and you haven't spoken to each other, consider deleting them. Firms now admit to mining Facebook for personal information.

  • Delete those silly profile applications. They make you agree to disclose your personal information. You have little if any control over who has it and what they do with it.

Other steps can further decrease the risk that your information gets in the wrong hands. But if you follow these steps, you have at least moved in the direction of protecting yourself. Let your friends know?

Good. Now get back to having fun


While I'm on the topic of Facebook, I'd also like to mention two recent posts from the Workplace Prof Blog, one of the better law blogs, that raise important questions about the impact of Facebook in the workplace. See Is It Wrong to Google Prospective Employees? and Will Facebook and MySpace Change the Workplace?


Finally, some writers have raised questions as to the legality of Facebook's new Social Ads scheme.

See Legally, are Facebook's social ads kosher? which is a good example of the current dialogue online on this topic:

Earlier this month, shortly after the social networking site announced its Social Ads initiative, University of Minnesota law professor William McGeveran argued in a blog post that the new program might violate a number of privacy laws.

Social Ads, which have already begun to appear on the site, are designed to boost Facebook's lukewarm revenues by targeting ads directly toward the members in question. They allow Facebook members to sign up as "fans" of an advertiser and then have their names and profile photos displayed alongside the marketer's ads on their friends' Facebook pages. Problem is, that potentially violates a New York privacy law that protects peoples' names and likenesses from being used without written permission, according to McGeveran.

"It's not just a New York law. Most states have statutes that protect this. Sometimes it's called a right of publicity, sometimes it's called commercial appropriation, sometimes it's a right to privacy," said Brian Murphy, a partner at Frankfurt Kurnit Klein & Selz, a New York-based media and entertainment law firm. "It's essentially that area of law that protects all of us, but in particular celebrities, from having their likenesses used without their permission."

...To the legal system, Facebook and other social networks a whole new ballgame. We're not going to see answers until actual court cases surface. Until then, some say Facebook ought to focus on the more immediate issue: The money, and whether the "trusted referral" ads actually work. "I think people are sort of getting lost in the ethics and privacy of it," said Deborah Schultz, a social media marketing consultant. "I question more its effectiveness."

UPDATE: November 16, 2007

Also see: More On the Law Blog’s Facebook Foray from WSJ Law Blog:

Law profs say the program may be illegal under a century-old New York privacy law which says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. Facebook told the NYT that it shouldn’t be a concern, as “we are fairly confident that our operation is well presented to users and that they can make their own choices about whether they want to affiliate with brands that put up Facebook pages.”

...We checked in with Daniel Solove of GWU Law, whose just-released book “The Future Of Reputation: Gossip, Rumor and Privacy On the Internet” addresses these very issues. He was very surprised at the Facebook/Fandango information sharing. “Facebook is thwarting their users’ control over personal information,” he told the Law Blog. “Users will find it difficult to control what information becomes public on Facebook and may be shocked to find that their activities and purchases elsewhere are openly revealed to others.” He added: “Facebook does not seem to understand what privacy is about — Facebook has 21st century technology but only an early 20th century understanding of privacy.”

A Facebook spokeswoman gave us a response: “Facebook’s Terms of Use provides the consent that the law requires. Social Ads is a fundamentally new type of advertising that puts users in control and displays relevant referrals from friends about the products and services they recommend.”

- Garry J. Wise, Toronto

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