Using fake Facebook profiles in investigations

Facebook, in its terms of use, requests that users be truthful on Facebook: “You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission” (section 4). Given that most profiles may contain valuable information useful for any investigation, more and more we are seeing fake profiles created in order for the investigator to gain access to a given profile. Once connected or “friends” with the party being investigated, it is then possible to have access to the individuals’ information and whereabouts depending on how much is actually disclosed by that individual on his or her profile.

Facebook has recently demanded that the U.S. Drug Enforcement Administration (DEA) stop using fake Facebook profile pages for the purpose of conducting investigations. This request, sent by letter, was said to be in response to New York resident Sondra Arquiett’s lawsuit against a DEA agent and the U.S. government for allegedly creating a fake Facebook page using her name and photograph without her knowledge or permission in order to lure criminals. Pictures of the woman as well as her child and other relatives were used to initiate contact with people that she knew.

Facebook regards DEA’s conduct to be a breach of its terms and policies and has requested the DEA to confirm that it has stopped using any other fake profile pages it may have created.

Over the last few years, some have been successful in impersonation lawsuits over fake Facebook profiles. For instance, in Laliberté c. Transit Éditeur inc., the defendant created a fake profile of the plaintiff “Laliberté”, owner of the Cirque du Soleil, in order to promote a new non authorized biography of the owner. The court ruled that there was no legitimacy in assuming the identity of another person with the intent of giving the impression that this person is the sender of emails and the author of replies.

Fake Facebook profiles can also be used in some cases in employers’ investigations in order to gain access to their employees’ information. In Campeau et Services alimentaires Delta Dailyfood Canada inc., the employer created a fake Facebook profile in order to become “friend” with the worker. The profile was made to be appealing to the worker (a woman who studied at the same University and who shared common interests). The employee accepted the friend request from the employer’s representative and the employer then gained access to the employee’s profile information. The employer was able to collect and use some of this information as evidence when taking disciplinary measures against the employee. The employee argued that the evidence obtained by the employer was illegally obtained, in breach of her privacy rights, and the court agreed with this position.

In a recent article which I co-authored with Patrick Gingras, we articulated the view that there should be a distinction made between a fake profile impersonating a real individual (posing as someone that does exist) vs. creating a fake profile of someone who does not exist such as it was in the case in Campeau. We believed that perhaps, there was some sort of negligence on the part of the employee who accepted, as a friend, a complete stranger.

More and more employers are using Facebook in their investigations of employees and as long as the connection (or friend request) is legitimate, the information posted on the employees’ profile is considered as “fair game” and can be used as evidence to demonstrate an employee’s misconduct.

This content has been updated on October 21, 2014 at 7 h 57 min.