Facebook Law: Beyond Privacy

There is a thin line between keeping a trade secret, well, secret and public disclosure, and that line is most narrowly drawn in the world of social networks. All of you who use your Facebook page and other networks as your own personal start-up sites, take heed:

Can postings, messages and/or emails that you send through social networking sites be used against you in contractual disputes? According to last month's ruling by the US District Court (Central California), the answer is maybe, probably, yes - perhaps. Would the same conclusion be reached in Canada? That also isn't clear.

Before the court was a request to subpoena all private messages, wall postings and comments posted by a litigant on his Facebook and MySpace pages. These items, it was argued, would support a defense in connection with a breach of contract/copyright infringement suit.

The court based its ruling on the antiquated Stored Communications Act, enacted by Congress in 1986 to protect emails and other private communications that individuals placed "in electronic storage" with "electronic communications service providers". The court went through a heavily-footnoted, elaborate analysis to conclude that yes indeed, direct messages sent via Facebook should be treated like emails sent via an ISP, and therefore protected from disclosure.

The court's findings did not extend to wall postings or comments, although the court hinted strongly that it would, if the facts indicated that the user had set his privacy settings to limited disclosure only.

Would the same reasoning apply here in Canada? It is difficult to see the line being so firmly drawn in many cases. Privacy settings allow for selective social networking, which is not the same thing as private, confidential or privileged communication. I can think of a number of situations where extending privacy to a user who has selected "friend only" access to his postings would be absurd.
What if the user granted all friend requests? What if the friends who could see the postings were, in fact, people with no relationship to the user? (One of my Facebook friends is, in fact, someone I've never met. He likes Farmville. A lot, according to my news feed.)

Until Facebook comes out with some kind of focussed business networks offering that manages these issues, you need to proceed with caution. Not a day goes by without a lawyer somewhere thanking the billing gods for the delivery of Facebook. For lo, unto us lawyers has been born an entirely new niche of legal practice: social networking, or "Facebook" law. Now that the body of Facebook law is expanding to deal with trade secret and copyrght disputes, and other commercial matters, the fun begins.