The answer appears to be probably yes, but whether or not any such material will be disclosable will depend upon whether it is relevant to the issues in the case.
The content of material on websites such as Facebook, Twitter and LinkedIn can all fall within the definition of “document” in CPR 31.4.
A document is likely to be treated by the court as a confidential document (although still disclosable) if it is:
- Confidential in nature, by having the “necessary quality of confidence”.
- Disclosed in circumstances importing an obligation of confidence.
In deciding whether an obligation of confidentiality arises, it is necessary to consider whether:
“… a reasonable man standing in the shoes of the recipient of the information would have realised upon reasonable grounds that the information was being given to him in confidence”
If no express requirement of confidentiality is imposed, there may be doubt as to whether the material is confidential, despite it being in a closed Facebook group. Regardless of the fact that the members of the group have not consented to the material being shared, if the material is treated as common knowledge it will probably be reasonable to assume that there is no obligation to keep it confidential.
Even if the material is found to be confidential (which, based on the above analysis, seems unlikely), if it falls within the ambit of a disclosure order made under CPR 31, it must be disclosed.
Facebook’s data policy itself, in the section How do we respond to legal requests or prevent harm? states:
“We may access, preserve and share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so”.
There have been a handful of cases where disclosure of materials from social media websites such as Facebook or LinkedIn has been an issue. For instance:
- In Hays Specialist Recruitment Ltd and another v Ions and another, an application for pre-action disclosure was granted by the High Court in respect of a potential claim that, while employed by the claimant, the defendant deliberately migrated details of business contacts from the claimant’s confidential database to his personal LinkedIn account.
- Applause Store Productions Ltd v Raphael refers to an earlier successful Norwich Pharmacal application made by the claimant against Facebook Inc (apparently unreported) in order to obtain details of who had set up a Facebook page which was the subject of a dispute.
- In the Northern Ireland Queen’s Bench Division judgment of Martin v Giambrone, the court held that Facebook posts were relevant documents and ordered their disclosure. The court held obiter that material posted on Facebook was not confidential. A party posting on Facebook, even if only to their “friends” did so in the knowledge that those “friends” would be able to pass that post to whomever they wished.
What about the members of the group who have not consented to the material being shared? Under CPR 31.22, subject to certain exceptions, a party to whom a document has been disclosed may use the document only for the purposes of the proceedings in which it is disclosed. This may provide a degree of comfort for the other members in the closed Facebook group.
It would be fascinating to see how judges would handle such a dilemma based on the limited available case law!
We would be interested to hear of your experiences.