Ever use facebook for client development or venting about your business troubles? Well, you should be aware that your private conversations on the website may now be made available to public scrutiny.

Earlier this year, an Ontario judge ruled that anything posted in the private section of Facebook is the same as any other “private” material: if you are involved in a court case, your private conversations on the networking site must be turned over to the other side if there is good reason to think they could be relevant to the case.

This can have major implications for anyone who mixes aspects of their professional life with their Facebook postings, either public or private. Tariq Remtulla, a corporate commercial litigator with Blake Cassels & Graydon LLP in Toronto, notes that blurring the line between public and private can create pitfalls for Facebook users.

“Because it is a social networking site that people also use in the context of business,” he says, “[users may] forget that just because they are communicating with ‘friends,’ it doesn’t mean it’s information that wouldn’t be relevant to a [court] proceeding that could happen down the road.”

What the decision means, in effect, is that even the simple posting of a name and a picture on the public section of Facebook is enough to alert others that you may be engaged in a wide range of private conversations that could be relevant to a court case in which you are involved. This reality can have consequences far beyond what users may be thinking when they are caught up in the fast and informal give and take of a casual digital conversation.

In Leduc v. Roman, a decision released by the Ontario Superior Court of Justice in February, a man suing for injuries incurred in a car accident, which he says were caused by another driver, refused to supply postings from the private section of his Facebook website to the other driver. The defendant pressed for the information, alleging that the private postings might shed light on the plaintiff’s enjoyment of life following the accident; the plaintiff had claimed that his quality of life had been diminished by his alleged injuries.

In such cases, the side that is resisting disclosing documents, digital or otherwise, often argues that the request is no more than a “fishing expedition” — an opportunistic hunt for information that will help the case, which is not permitted.

In ruling for the defendant, Justice David Brown concluded that, because of the nature of Facebook, the mere existence of the plaintiff’s site raised a reasonable inference that the private sections might contain information relevant to the case.

In other words, it was enough that the plaintiff had a Facebook site; the lack of material in the public section did not matter. “Mr. Leduc exercised control over a social networking and information site to which he allowed designated ‘friends’ access,” Brown wrote in his decision. “It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.”

Although Leduc deals with car accidents and lifestyle, its basic principle can be applied to business relationships.

Notes Remtulla: “There are applications in different contexts: there’s family law, employment law, insurance law and a corporate law context, and people are sending emails back and forth and [mistakenly] thinking that these are private messages.”

Let’s say, for instance, a Facebook user is a financial advisor who has a dispute with a client or who speculates on Facebook with friends and trusted colleagues about why some clients are angry about the decline in their portfolios over the past year. Two years later, a client decides to sue. In hindsight, the comments about bruised clients seem a touch unfair. But now, the contents of the private postings are being requested by the client. The advisor may have to produce the potentially damaging material or risk the court’s wrath.

And while there are many new laws and regulations designed to protect the privacy of individuals in the digital age, they won’t necessarily be of assistance in situations such as these.

Bonnie Freedman, a lawyer with Borden Ladner Gervais LLP in Toronto who specializes in the law dealing with privacy and access to information, does not direct professionals to refrain from particular activities. But she does caution Facebook users that they need to be aware of the risks of using the website for business-related purposes.

@page_break@“Before you make any decision about how you’re going to use this, and what material you’re going to post,” she cautions, “you should understand that privacy rights are not absolute and that in certain contexts [such as litigation] a court can order the disclosure of that information.”

When it comes to postings that could have a connection to your professional life, Freedman suggests some practical guidelines: “What you need is a sober second look. Before you post something, think: ‘Would I be comfortable if this were to be disclosed? What would it say about me professionally? Would this be a business-enhancing disclosure or something that is likely to hurt either my reputation or my firm’s reputation?’”

Business users should also be mindful of their employer’s concerns, she adds. Would an employer view publication of comments on Facebook as a breach of a professional commitment not to undermine the employer’s reputation or image?

Freedman suggests that employers in the financial services industry may want to turn their attention to drafting specific policies on this issue, including the potential for the inappropriate release of confidential client information. IE