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Newsletters
> February 2009
In this issue:
1. LITIGATION AND THE USE OF FACEBOOK, MYSPACE, FLICKR AND OTHER
SOCIAL NETWORKING SITES - USERS BEWARE
2. THE LAWS OF AVIATION: LIABILITY OF THE CARRIER IN THE CASE OF
DESTRUCTION, LOSS, DAMAGE OR DELAY TO BAGGAGE.
1. LITIGATION AND THE USE OF FACEBOOK,
MYSPACE, FLICKR AND OTHER SOCIAL NETWORKING SITES - USERS BEWARE
Popular social networking sites are
no longer just for vacation photos and status updates. Lawyers and
their clients need to be aware of how access to such sites can be
crucial in making their case.
The information and photographs posted
on a user's profile on such social networking sites can be invaluable
tools in civil litigation. Employers have been using these sites
as part of their interview process. Now litigators are getting into
the action.
Information on social networking sites
such as Facebook can aid in assessing the value of a plaintiff's
claim for personal injury damages both at trial and in settlement
discussions. It can be extremely useful when dealing with a claimant
who claims that their social activities have been compromised.
Recently an Ontario court had to deal
with the issue of whether information on Facebook had to be disclosed
in the discovery process. In Leduc v. Roman 2009 CanLII 6838
the defendant brought an application to force the complainant to
produce the information on his Facebook profile as part of the discovery
process. The claimant, Mr. Leduc took the position that that the
information was private and that his settings on Facebook only allowed
a limited number of friends access to his profile.
The issue arose when Mr. Leduc underwent
several medical examinations. During an examination in May, 2006,
he advised the psychologist that he was not able to engage in the
sporting activities he had enjoyed before the accident. In September,
2007, Dr. Bruun-Meyer conducted a defence psychiatric evaluation
of Mr. Leduc. The resulting medical report recorded that Mr. Leduc
had told Dr. Bruun-Meyer that he did not have friends in his current
area, although he had "a lot on Facebook".
At the same time defence counsel's
office conducted a search of Facebook profiles and discovered that
Mr. Leduc kept a Facebook account. Mr. Leduc's publicly available
Facebook profile showed only his name and picture. Because Mr. Leduc
had restricted access to his site only to his "Facebook friends",
defence counsel's office was not able to view the content of his
site.
Early in June, 2008, the defence moved
for several production-related orders, including orders for (i)
the interim preservation of all information contained on Mr. Leduc's
Facebook profile, (ii) production of all information on the Facebook
profile, and, (iii) the production of a sworn Supplementary Affidavit
of Documents. The court described Facebook as:
The general evidence described Facebook as a "social
website" or, as put by its Terms of Use, "a social utility
that connects you with the people around you". As of June,
2008, Facebook had more than 70 million active users. Although
originally designed for use by American college students, more
than half of Facebook's users now are outside of college, and
users over 25 years of age make up its fastest growing demographic.
[18] The site is available for the personal, non-commercial
use of its users. Content which users may post on Facebook includes
photos, profiles (name, image, likeness), messages, notes, text,
information, music, video, advertisements, listing and other content.
The sites' "Facebook Principles" indicates that a user
may "set up your personal profile, form relationships, send
messages, perform searches and queries, form groups, set up events,
add applications, and transmit information through various channels."
[19] When a person registers with Facebook, he creates
his own profile and privacy settings. Profile information is displayed
to people in the networks specified by the user in his privacy
settings - e.g. a user may choose to make his private profile
information available to others within his school, geographic
area, employment network, or to "friends" of "friends".
A user can set privacy options that limit access to his profile
only to those to whom he grants permission - the so-called "friends"
of the user.
[20] Facebook contains several applications. A user
can post basic personal information - age, contact information,
address, employment, personal facts, relationship status, etc.
A user can post Photo Albums; Facebook is the largest photo-sharing
application on the Web, with more than 14 million photos uploaded
daily. A user can create a "wall", or chat board, where
friends can post messages to each other. These postings can be
viewed by all friends looking at the webpage, unlike emails which
only the recipient can read. A user also can join a Facebook "group",
essentially a community based on common interests.
The master of the court (a master is not a judge but
is authorized to hear most pre-trial procedural questions) held
the defendant was on a fishing expedition and Mr. Leduc was not
required to produce the information on Facebook. This decision was
appealed. Justice Brown, of the Ontario Superior Court held otherwise.
Justice Brown stated:
Where, as in the present case, a party maintains
only a private Facebook profile and his public page posts nothing
other than information about the user's identity, ... 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.
[32] 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. Master Dash characterized the defendant's
request for content from Mr. Leduc's private profile as "a
fishing expedition", and he was not prepared to grant production
merely by proving the existence of the plaintiff's Facebook page.
With respect, I do not regard the defendant's request as a fishing
expedition. Mr. Leduc exercised control over a social networking
and information site to which he allowed designated "friends"
access. It is reasonable to infer that his social networking site
likely contains some content relevant to the issue of how Mr.
Leduc has been able to lead his life since the accident.
[33] I do agree with Master Dash that mere proof
of the existence of a Facebook profile does not entitle a party
to gain access to all material placed on that site. Some material
may relate to matters in issue; some may not. Rule 30.06 requires
the presentation of some evidence that a party possesses a relevant
document before a court can order production. Most often such
evidence will emerge from questions asked on a party's examination
for discovery about the existence and content of the person's
Facebook profile. Where the party's answers reveal that his Facebook
profile contains content that may relate to issues in an action,
production can be ordered of the relevant content.
Justice Brown held 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.
Justice Brown allowed the defendant to cross
examine Mr. Leduc on his supplementary affidavit of documents regarding
the kind of content posted on his Facebook profile.
Other courts had previously dealt with social networking sites and
use of information from such sites. In Cikojevic v. Timm, 2008 BCSC
74 the court refers to information on Facebook but does not provide
analysis as to how that information was before the court. The reference
in the case simply states: "Photographs downloaded from her
Facebook page show her participating in golf, snowboarding, rock-climbing,
travel and other social activities all of which have a cost. There
are, apparently, 600 such photographs on her Facebook page."
In Murphy v. Perger, [2007] O.J. No.
5511 (S.C.J.) the case also involved a claim for damages resulting
from injuries suffered in a car accident, including a claim regarding
loss of enjoyment of life. The plaintiff had posted photographs
on her publicly-accessible Facebook profile showing her engaged
in various social activities. The defendant moved for production
of any photographs maintained on the private Facebook profile over
which the plaintiff had control. In considering whether the defendant's
request represented a mere fishing expedition or whether relevant
photographs likely were posted on the private site, Justice Rady
stated:
[17] It seems reasonable to conclude that there
are likely to be relevant photographs on the site for two reasons.
First, www.facebook.com is a social networking site where I understand
a very large number of photographs are deposited by its audience.
Second, given that the public site includes photographs, it seems
reasonable to conclude the private site would as well.
[18] On the issue of relevancy, in this case, clearly
the plaintiff must consider that some photographs are relevant
to her claim because she has served photographs of her prior to
the accident, notwithstanding that they are only "snapshots
in time".
Justice Rady discounted that any significant privacy
concerns arose in the circumstances before her:
[20] Having considered these competing interests,
I have concluded that any invasion of privacy is minimal and is
outweighed 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.
Rady J. ordered the plaintiff to produce copies of
the web pages posted on her private site, subject to the ability
of plaintiff's counsel to make future submissions in the event that
any of the photographs personally embarrassed the plaintiff.
In Kourtesis v. Joris, 2007 CanLII 26284 and
39367 Justice Brown allowed photographs from Facebook into evidence
during the trial and concluded , based on the photographs that the
claimant did in fact enjoy life. The Judge found that contrary to
testimony given by her and her family, she continued to enjoy an
"active social life."
In Goodridege (Litigation Guardian of) v. King,
2007 CanLII 51161, Justice Platana of the Ontario Superior Court
concluded that the scarring on a plaintiff's face did not substantially
interfere with her enjoyment of her everyday life. The Judge noted
that the plaintiff provided her picture on Facebook and the Facebook
information demonstrated that she continued to socialize and date.
It is clear that lawyers and their clients have to be aware of new
sources of information in dealing with claims for personal injury.
Social networking sites can be a gold mine for defendants and a
disastrous pit for claimants. The courts are prepared to use such
information in trial and are prepared to order preservation and
production of such information in the discovery process.
Rui Fernandes
2. THE LAWS
OF AVIATION: LIABILITY OF THE CARRIER IN THE CASE OF DESTRUCTION,
LOSS, DAMAGE OR DELAY TO BAGGAGE.
Airlines experience baggage claims that are not commonly
experienced by other modes of carriage. The differentiating factor
is that with air travel baggage is provided to a carrier upon check-in
and then typically not handled again by the passenger until arrival
at the destination. This means that during this time period, baggage
is under the care, custody and control of the airline and/or it
servants, agents and/or employees and it owes a duty to the passenger
to ensure its safe carriage.
The speed, complexity and number of people involved
in handling air baggage provide numerous opportunities for baggage
to become lost or damaged while it is in the airline's care, custody
and control. The purpose of this paper is to assist the reader in
understanding exactly what the carriers' responsibilities are and
what actions passengers should take to ensure they receive the maximum
recovery.
Prior to diving into this topic, it should be noted
that this article focuses largely on international air carriage
that is governed by the Convention for the Unification of Certain
Rules for International Carriage by Air, which was signed in
Montreal on May 28, 1999. This convention is commonly referred to
as the Montreal Convention, 1999 and shall be referred to
as such herein. The Montreal Convention, 1999 became law
in Canada when it was incorporated into the Carriage by Air Act.
R.S.C. 1985, c. C-26 Though the Montreal Convention, 1999
is in essence the default regime that is applicable, depending on
circumstances, other laws, conventions and/or protocols could be
applicable in certain circumstances. This is noted to inform the
reader of this reality; however, this is beyond the scope of this
paper.
As mentioned above, the baggage is in the care, custody
and/or control of the carrier and/or its servants, agents and/or
employees from the time that the passenger checks the baggage in
until it is returned to the passenger following disembarkation.
The obligations of the air carrier during this period are set out
in Article 17 (2) of the Montreal Convention, 1999.
In particular the Convention states that:
The carrier is liable for damage sustained in
case of destruction or loss of, or of damage to, checked baggage
upon condition only that the event which caused the destruction,
loss or damage took place on board the aircraft or during any
period within which the checked baggage was in the charge of the
carrier. However, the carrier is not liable if and to the extent
that the damage resulted from the inherent defect, quality or
vice of the baggage. In the case of unchecked baggage, including
personal items, the carrier is liable if the damage resulted from
its fault or that of its servants or agents.
In accordance with this provision, in the case of
checked baggage, it states that the carrier is strictly liable for
any destruction, loss or damage to the baggage from the time that
the carrier is provided the checked baggage until it is returned
to the passenger at the destination. Therefore, the passenger is
only obliged to prove that the loss in fact did occur and that the
baggage was in the possession of the carrier and/or its servants,
agents and/or employees at the time of the loss.
With respect to loss of baggage, the Convention stipulates
that a carrier is not deemed liable until twenty-one (21) days have
passed since the day the baggage was scheduled to arrive or the
carrier admits the loss of checked baggage. (Article 17(3))
In the case of baggage that has not been checked,
the Montreal Convention, 1999 does allow for carrier liability
in the event that the baggage is damaged or lost; however, the passenger
has the significant burden of showing that the loss of the baggage
or the damaged contents resulted from the fault of the air carrier
and/or its servants or agents. (Article 17(2))
A carrier does have a couple of defences to liability
with respect to baggage claims, including in the case of checked
baggage. The first is a substantive defence in that the carrier
will not be liable if it can show that the damage was the result
of inherently defective baggage. A second defence available to the
carrier is a procedural one in that the passenger is obliged to
provide notice to the carrier in the event of damage or delay. In
particular, in the case of damage, a passenger must advise the carrier
in writing within seven (7) days of receipt of the checked baggage.
In the case of delay, the carrier must be advised in writing within
twenty-one (21) days from the date that the carrier received the
cargo. It should be noted that there are no notice requirements
with respect to the loss of baggage. (Article 31(2)(3)). The Montreal
Convention, 1999 goes on to note that if the passenger fails
to abide by these notice requirements, then "no action shall
lie against the carrier, save in the case of fraud on its part."
(Article 31(4)
Once liability has been established and the notice
requirements have been complied with, the next step is to determine
the amount of exposure that the carrier may face. In the case of
the Montreal Convention, 1999, the carrier is able to automatically
rely on the limit of liability. In particular, in the carriage of
baggage, "in the case of destruction, loss, damage or delay
[a claim] is limited to 1000 Special Drawing Rights for each passenger".
(Article 22(2))
The Montreal Convention, 1999 allows for this
limit of liability to be broken by the passenger in one of two ways.
The first is that the carrier and passenger can agree to waive this
limit if it is mutually agreed at the time that the baggage is checked
and the passenger pays a supplementary sum for this service. (Article
22(2)) Secondly, these limits can be broken if the "damage
resulted from an act or omission of the carrier, its servants or
agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result." The paragraph
goes on to note that the servants or employees must be acting within
the scope of their employment for this trigger to apply. (Article
22(5)
The aforementioned may assist in breaking the limits
of liability, but if one is unable to break the limits, then one
must work within the terms of the limits of liability. In particular,
one must ensure that they do not do anything to limit liability
further than what is prescribed by the Montreal Convention,
1999.
Ace Aviation v. William Holden 2008), 240 O.A.C.
184 or 2008 CanLII 40223 (ON S.C.D.C.) is an example of case where
the passengers faced a technicality with respect to the limits of
liability and one of the passengers was unable to recover. In this
case, Mr. and Ms. Holden were flying to New York. Prior to departure,
Mr. and Ms. Holden had packed numerous items within one bag. Upon
arrival in New York, they discovered that the bag was lost. Mr.
and Ms. Holden, who both had items in the bag, made a claim against
the carrier. The court in the end reasoned that Article 22(2) of
the Montreal Convention, 1999, was drafted in such a way
that "passenger" only included the person who checked
the baggage. Accordingly, the court concluded that Ms. Holden had
checked the bag and could make a claim for the limit of liability,
but Mr. Holden, who may have had belongings in the bag and may have
indeed been a passenger aboard the plane, could not make a claim
against the carrier.
In conclusion, despite the fact that carriers are
strictly liable with respect to any damage or loss that occurs to
checked baggage, it is not automatically recoverable for the passenger.
The passenger is obliged to ensure that proper notice is provided
to the carrier and that they are able to demonstrate what damages
were actually incurred as a result of the carrier's breach of contract
and/or negligence. In addition, passengers traveling in pairs ought
to take steps prior to even boarding the plane to ensure that each
passenger has his or her own bag and that each passenger ensure
that his or her own bag is checked in under his or her own name.
If the proper steps are taken at the front end, passengers will
likely achieve a far more satisfactory resolution.
Matt Mulholland
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