Social Media in the Workplace: Facebook Profiles Are Not Private
A recent decision from the Commission des lésions professionnelles (CLP) concludes that the information found on a Facebook account is not private, considering that numerous people may have access to this information.
The Landry et Provigo Québec inc. decision was made after an employee filed Facebook pages from her colleagues’ Facebook profiles as evidence supporting her allegation of psychological harassment. The employer objected to this evidence, arguing that it was not a complete representation of all communications exchanged, that it constituted hearsay, and that the production of this evidence breached the Charter of Human Rights and Freedoms because it violated the privacy rights of third parties. The employer argued that the communications exchange on the Facebook page of a third party are of private nature, and that to produce such communications as evidence violated the Charter. Finally, the employer argued that the document did not meet the criteria under Section 2855 of the Civil Code of Québec regarding the production of material things.
The employee submitted that the documents filed as evidence were complete, since they included the names and the pictures of the individuals who wrote the comments, as well as the dates and times the comments were posted on Facebook. The employee also submitted that this evidence did not constitute hearsay since the employer was free to contact the individuals concerned and to summon them as witnesses.
According to the CLP, based on an Act to Establish a Legal Framework for Information Technology (IT Act), Facebook is a technology-based document having an equivalent legal value to documents on paper or on any other medium. The employee had produced as evidence only the Facebook pages of her colleagues featuring comments about her. The CLP concluded that even if not all the pages publishing comments on a certain day are produced, this does not mean the document is incomplete, as long as the pages produced are complete. The CLP also concluded that according to the IT Act, the party contesting the admission of the document bears the burden of proving that the document’s integrity has been affected.
Regarding the hearsay argument, the CLP concluded that the reliability of Facebook pages is sufficiently guaranteed and that the employer has the opportunity to summon the authors of the comments to appear at the hearing. Therefore, Facebook evidence cannot be dismissed as being hearsay.
As to the argument regarding the breach of privacy rights, the CLP explained how Facebook works and noted that the employee respected the functions of Facebook: she had access to her colleagues’ comments filed as evidence because she became Facebook friends with a colleague who had these mutual colleagues on her friends list. The interaction between Facebook users is fundamental to such a social network.
The CLP made an interesting distinction, noting that each comment on Facebook is made on a personal basis but is not made on a private basis.
A person who holds a Facebook account allows his or her friends to view his or her comments and allows the friends of his or her friends to view comments he or she posts on the walls of his or her friends. The CLP stated that this situation is far from being private. The CLP concluded that what is on Facebook is not private, taking into account the number of people who may have access to the content. The Facebook pages filed as evidence were not protected under the privacy rights of third parties.
This decision is consistent with recent decisions of the Ontario Superior Court, which have concluded that a Facebook user cannot have any serious expectation of privacy given that numerous people (i.e., a number of friends) are granted access to a person’s page. One Ontario decision even underlines the fact that a party who maintains a limited-access Facebook profile stands in no different position from one who sets up a publicly available profile. The primary purpose of Facebook is to allow people to share information about how they lead their social lives. To allow an individual to hide behind the privacy controls that he or she sets on such a website risks depriving a party of access to material that may be relevant to ensuring a fair trial.
We will have to wait to see whether other Québec tribunals will follow the approach taken by the CLP.
Tips for Employers
This case serves to remind employers of the following:
Employers would be well advised to help their employees understand the public nature of their exchange of communications on Facebook and other social media Internet sites.
Technology-based documents such as Facebook hold the same legal value as paper documents, and despite the personal nature of the communications within, these documents are not private and are not protected under the privacy rights of third parties.
Company policies on harassment or abuse should extend to conduct of this nature in non-conventional public forums, such as online social networking websites.