Breach of Confidence: Your “Friends” Can’t Protect You

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This is the republishing of an article first appeared on the IP Osgoode Law blog as part of a cross-posting agreement

 

As social media becomes increasingly prolific, the perils of its use are becoming increasingly apparent. Yet another case has highlighted that the information you place in the online sphere is liable to harm you in a court of law.

A Northern Ireland court recently discussed the confidentiality of Facebook comments in Martin & Ors Gabriele v Giambrone. These proceedings related to failed investments by the plaintiffs made through the defendant in his capacity as a solicitor. Following a hearing on the matter, Mr. Giambrone posted the following comment on his Facebook site, “they thought they knocked me down, now they will see the full scale of my reaction. F*** them, just f*** them. They will be left with nothing.”

On the basis of this comment, a Mareva Injunction, which prevents the liquidation of assets, was obtained against Mr. Giambrone. In response, the defendant suggested that using his comment in this way constitutes a breach of confidence since he ensured that his profile was accessible to “friends” only.

The court stated that even if the post was confidential, such a determination would not preclude it from disclosure as part of the discovery. The court went on, however, to comment that notwithstanding their acceptance of this post as evidence, the use of his comment in order to obtain an injunction does not constitute a breach of confidence.

The test for breach of confidence in Ireland requires that the information be:

(1) Confidential and/or private, and

(2) The plaintiffs must have known that it was confidential and/or private.

The court determined that the information was not confidential because it was posted to the Internet and therefore in the public domain. Even if the comment was only accessible to his “friends” it was posted with the knowledge that his “friends” could forward the post to anyone. Regarding the second stage of the analysis, when someone receives information and knows or ought to know that it is fairly and reasonably confidential, a duty of confidence arises. The court determined that none of his “friends” could have understood that this comment bound them to a duty of confidence and were more likely to the come to the conclusion that this post was a statement of defiance. As a result, it was decided that the use of this comment to obtain an injunction would not constitute a breach of confidence.

In Canada the test for breach of confidential information is drawn from Lac Minerals v International Corona Resources Ltd. This is a three-part test, which requires:

(1) The information was confidential (based on an objective standard),

(2) The information was communicated in a relationship of confidence (express, implied by customs, or implied by law), and

(3) The information was misused by the party to whom it was communicated

The similarities between the tests make it likely that no breach of confidence would have been found, had the case been determined by a Canadian court. Information will be considered confidential if it is subject to measures to protect its secrecy; however, simply limiting your profile so that only “friends” can view comments may not be enough to be considered confidential on an objective standard. Additionally, a Facebook comment is unlikely to produce an express or implied relationship of confidence. While “misuse of information” may be found, as misuse has been understood as being any use not requested by the confider, it appears that this allegation would likely fail the first two requirements of this test.

This case serves as another demonstration of the possibilities for legal liability that are found on the Internet. It is essential to recognize that although it is easy to believe that only your friends will be reading your posts and comments, any information you provide on social media sites are likely to be considered in the public domain.  Before posting comments on your friend’s Facebook wall, it may be worth taking a moment to consider whether you are willing to see it again in a court of law.

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