The Latest on the Dangers of Social Media for Litigants

A great deal has been written about the revolutionary changes in communication created by social media.  The statistics indicate that more and more people are “meeting” online and ultimately marrying.  On Facebook, people stay in touch with their friends, parents keep track of what their children are doing, and people post photographs in addition to other information for viewing both publicly and by those identified as “friends” who are given access to private photograph libraries.

The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.

The posting of photographs on Facebook, however, can represent a gold mine for litigation counsel.

In personal injury practice, it has become commonplace for insurers to retain investigators to conduct surveillance on Plaintiffs claiming to be seriously injured in the hope of obtaining evidence, primarily photographic, of the Plaintiff engaging in activities which are inconsistent with the claimed injuries.

With Facebook, personal injury plaintiffs who are not careful about their Facebook accounts can hand such evidence over to defendants and their insurers on a platter.  This is clearly demonstrated by the recent case of Stewart v. Kempster, a Superior Court decision released in late December, 2012. 

In that case, the Plaintiff claimed permanent serious injuries resulting from a car accident.  She claimed that her injuries were accompanied by anxiety, depression, emotional trauma, weakness and diminished energy.  She further claimed that she was unable to participate in recreational, social, household and employment activities resulting in the loss of enjoyment of life.

During her examination for discovery, she gave evidence concerning vacations that she had taken since the accident.  She was asked whether or not there were any photographs of her on vacation in her Facebook account.  She maintained that while there were such photographs, they merely showed her standing, sitting or leaning.

The Defendant examined the Plaintiff’s Timeline section of the Facebook account and noted two entries that referred to her being on vacation using words like “Life is good!” and brought a motion to the court for an Order requiring the Plaintiff to produce all of the photographs in her Facebook account, not otherwise accessible to the public, depicting the Plaintiff on vacation.  The Defendant argued that the photographs were relevant because the Plaintiff had put her enjoyment of life and participation in social and recreational activities in issue, and furthermore that on discovery, the Plaintiff had testified that on these vacations, she had participated in swimming, walking and sightseeing.

The photographs in question were presented to the court in a sealed envelope so that the judge could review them.  The judge did review them and found that they were not relevant simply because they did not show the Plaintiff participating in any physically demanding activity.  Accordingly, the motion was dismissed.

The important point is that had the photographs shown the Plaintiff participating in activities which were not consistent with her injury claims, they would almost certainly have been ordered to be produced.  The judge referred to an earlier case in which photographs available on the publicly accessible portion of the Plaintiff’s Facebook account led to the inference that similar photographs might be posted on the private portion, and ordered the private photographs to be produced.

The court noted that the issue raised an important point about a person’s right to privacy.  The Supreme Court of Canada has made it clear that a litigant has to accept that there will be privacy intrusions to the extent necessary to enable a judge to get to the truth in a case and render a proper verdict.  However, the Supreme Court of Canada has also made it clear that the opposing party does not have the right to delve into the private aspects of the Plaintiff’s life to the extent that is beyond what may be necessary for the proper disposition of the case.  Accordingly, a balance between these competing interests must be found and this will have to be assessed on a case by case basis.

In the earlier case in which production had been ordered, the court had noted that the Plaintiff had 366 “friends” which suggested to the judge that the Plaintiff could not have had any serious expectation of privacy in the photographs.

There are a variety of tests to be met before production of photographs on a private Facebook account will be ordered.  Relevance and privacy are the major ones.  Having said that, this is not an exercise that a Plaintiff should want to experience.  Accordingly, Plaintiffs should be very careful about posting post-accident photographs which may relate in any way at all to the claims put forward in the lawsuit.

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