If the case turns on this evidence there is no way it doesn’t get appealed; the judge’s reasoning seems questionable at best.
“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,” he said.
But simultaneously, that information is not intended to be disclosed to the general public, but only to trusted confidantes (to put it in terms more friendly to the individual in question). That should potentially raise a privacy issue. I’m going to keep tabs on this one.
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I’m not really familiar with Canadian law, but in the US, I don’t think communication between “confidantes” enjoys any sort of legal immunity from subpoena. Of course, diaries and their ilk are protected based on rights not to self incriminate (our 5th amendment, I presume Canada has some similar protections, even if only in the common law) So I see no reason, even based on your framing of the situation, that the opposing counsel can’t simply subpoena a friend who can see the “private” information and access it that way.
I understand the ethical issues this brings up, but privacy, and let me quote Anathema here, is only a hallucination.
That said, this is the internet. How can anything somebody posts in Facebook or his/her blog or whatever be considered a proof? (I didn’t read the linked article, but I guess is pretty absurd in a not funny way)
If you have to force somebody to disclose it, how can it be considered public?