FaceBook Privacy – Who can gain access to your ‘locked down’ FaceBook profile?

By now, most of you have probably heard about the Nathalie Blanchard (NB) case in which NB claims that Manulife used her vacation photos on Facebook as the source of her losing her medical insurance benefits.  Just do a search on “Nathalie Blanchard” and you will see that everybody seems to be talking about her case; from bloggers, to news reporters, to tweeps, etc…  all over the world.  And readers are fervently commenting on the reports.  At the time of writing this article, almost 700 people had taken the time to comment on NB’s story written in the online publication CBCnews.

If this picture was truly accessed on a locked-down FaceBook profile by somebody who was not a ‘friend’, then one has to wonder who can truly gain access to our private FaceBook profiles.  Out of curiosity about these potential privacy issues, I contacted Anita Fineberg, a Canadian Privacy Lawyer, to discuss NB’s case.  It was such an enlightening discussion that we both agreed to share some highlights of our chat with you.

1) The media headlines may be incorrect or misleading. The headlines focus on the use of NB`s Facebook pics as the evidence that motivated Manulife to terminate  her benefits.  Read through the article and you will see a comment by Manulife that the pics were not the full reason why they cut off NB`s benefits.

“We would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

At the moment, we do not know the basis on which Manulife terminated NB`s benefits. The question that we need to ask ourselves is whether the Facebook photo was a factor and how much of a factor in the decision to terminate NB`s benefits.

2) Assuming that the Facebook photos were a factor in Manulife’s decision to terminate NB`s benefits, there are several legal ways that Manulife may have gained access to the pics.

a) NB states that her Facebook profile is locked down and that only her friends have access to the information and photos that she shares.

There are many different privacy settings on Facebook for different things.  Were all of her settings in fact private and available only to friends?

b) Manulife could have contacted somebody who was a friend of NB on Facebook to get access to her account.  This poses ethical issues, but not legal issues.

c) The FaceBook privacy policy does indicate that there are instances when they will share a private profile.

Section 5 of the November 19 2009 Facebook policy revision:

To respond to legal requests and prevent harm.

• We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law.
• This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards.
• We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.

3) What if somebody else had posted the picture of the patient and tagged the patient – would that have changed anything?

If the photo went public, and NB was identified as being in the picture, Manulife could have gotten access to it and would have been able to use it as part of their evidence.

4) How far back can social media data be used as evidence?

If the photo is relevant to the matter at hand, then regardless of the age of the photo, it could be used as evidence.  Medical records are a similar example.  The media is different, but the issue is the same.

5) What are some recommendations to help Canadians use their social networks more carefully?

Operate on the assumption that even if you properly applied your privacy settings, there is a possibility that people who you’ve not indicated as your ‘friends’ may view or read what you’ve got on your profile.

Take the time to read and truly understand the privacy policy for the network in question.  Apply it, and recognize that it is not the last word on the availability of your information.

Conclusion: So privacy on FaceBook, it appears, is just a perception.  However, it is such an excellent networking tool, that I would not want to give the message that people should stop using their FaceBook accounts, or become paranoid about using them.  Instead, the message is just to be cautious about posting certain information (about yourself and others), and to be aware that “non-friends” may eventually gain access to your information, with or without your permission.

Many thanks to Anita for sharing her privacy expertise and insights into this case study.

Stay in touch,
Nat

Marketing 4 Health Inc.
Medical Marketing and Social Media Consultant

http://www.facebook.com/NatBourre

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