Admissibility of Facebook Posts

In the recently released decision of K.M. v. J.B., 2013 BCSC 2041, the Honourable Mr. Justice Butler considered the admission of Facebook postings obtained by the wife, who had accessed the husband's Facebook account with his password, given to her during the parties' relationship. The Court admitted the postings, finding that the evidence was reliable and not private, as it was broadcast to an audience who could share the posts. The Court said:

[6]             Prior to setting out the facts and my analysis of these issues, I must provide my ruling on an evidentiary issue that arose early in the trial. The claimant wished to make reference to screen shots she took of the respondent's Facebook pages. The respondent took the position that these were inadmissible on the basis they were private and had been obtained either illegally or wrongfully. The postings showed the respondent's activities at times when he was supposed to be exercising access according to the interim order. The postings also contain some negative comments about the claimant and information about the respondent's work. I indicated to the parties I would hear the evidence to consider the question of relevance which has a bearing on admissibility.

[7]             The law regarding wrongfully obtained evidence in family disputes was thoroughly canvassed in Mathews v. Mathews, 2007 BCSC 1825. At para. 43, Barrow J. succinctly summarized the proper approach to admissibility of such evidence:

From the foregoing, it is clear there is a limited discretion to exclude relevant evidence in this context.  The judicial exercise of that discretion involves a balancing of competing interests which can be usefully viewed as assessing the probative value of the evidence as against its prejudicial effect.  It does not involve the application of the Charter per se.

[8]             In Mathews, the evidence was admitted in circumstances where the father entered the mother's room surreptitiously and removed a diary from a locked box. The court concluded the actions of the father, while not illegal, amounted to a violation of the mother's privacy. The evidence was admitted as it was reliable and probative and there was no prejudice to the trial process. The existence of prejudice created by the "odious" practice of secretly intercepting private communications was offset by the prejudice that would arise by excluding the evidence. The administration of justice favours the admission of probative reliable evidence which is relevant to the best interests of the children.

[9]             In the circumstances of this case, I have no hesitation in ruling the evidence is admissible. It is relevant to the parenting question I must consider. The postings are reliable as they are the respondent's own comments to his circle of friends. Unlike the situation in Mathews and other cases which have considered this issue, little prejudice arises here from the manner in which the communications were obtained. The respondent gave his Facebook password to the claimant when they were together. After they separated he knew she still had it. The claimant admitted she probably should not have been looking at his account, but he was aware she could do so. Further, his postings were not truly private communications. They were available to be seen by a group of friends and could have been shown to others or passed on by the recipients. In these circumstances, the respondent had no real expectation of privacy in his postings.

[10]         There is no possible other prejudice in these circumstances. Indeed, the interests of justice would not be served if the court could not consider evidence which is relevant to the best interests of C.B. Exhibits A through D are accordingly admitted in evidence.