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The "Over Share": How Social Media Posts Can Impact Your Personal Injury Claim – Media, Telecoms, IT, Entertainment – Canada – Mondaq News Alerts

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“Before the dawn of the Internet age, people often
communicated by writing personal letters to each other. It could be
said that such letters served to keep friends and family connected,
and provided a medium in which people would share information with
each other about what matters to them. They might even discuss the
state of their health, if they happened to have suffered a
traumatic event such as a motor vehicle accident in the recent
past. However, it is unimaginable that a defendant would have
demanded that a plaintiff disclose copies of all personal letters
written since the accident, in the hope that there might be some
information contained therein relevant to the plaintiff’s claim
for non-pecuniary damages. The shocking intrusiveness of such a
request is obvious. The defendants’ demand for disclosure of
the entire contents of the plaintiff’s Facebook account is the
digital equivalent of doing so.”
Stewart v.
Kempster
, 2012 ONSC 7236 (CanLII), 114 O.R. (3d) 151, para
29

Growing up in the age of the Internet can be challenging. Young
children have always been taught that everyone makes mistakes and
that mistakes can be a good thing because they are how we learn.
Usually very few people see our mistakes; if they are embarrassing
or cause harm to others, the damage is often limited.

But when you make a mistake online such as uploading a photo
that you later regret taking, or making an inappropriate comment,
people all over the world can see it. Even if it’s deleted, it
can live on forever if someone’s saved archive.

Adults of course have made these kinds of mistakes too, and some
of us have learned that we need to be more careful about what we
share on the Internet and with whom we share it. If we use social
media to communicate with friends, we may decide to make our
accounts private and viewable to only certain people or control
which of our friends see certain posts.

Are these privacy tools giving us a false sense of security?
It’s a question we can consider in a number of ways. In this
blog, I look at what rulings can tell us from a few significant
personal injury cases where defendants have sought to use social
media posts against plaintiffs. The few cases cited are hardly
exhaustive, but they are illustrative and instructive.

Public Surveillance, Private Posts?

As you read forward, keep in mind the quoted passage at the top
of this blog post, taken from Stewart v. Kempster. When a
person launches a personal injury claim which makes assertions
about how an accident or medical condition has negatively impacted
their physical and/or mental abilities and enjoyment of life, they
must provide evidence supporting their claims. This evidence can be
from medical reports, witness testimony or other documents that
demonstrate what their life was like before and after the accident
or onset of the medical condition.

The defence has the right to question the veracity and strength
of this evidence and/or produce its own evidence which might paint
a different picture or tell a different story. Sometimes this can
be in the form of its own expert witnesses, but other times the
defence may draw on other evidence such as private
investigators’ surveillance photos or videos which purport to
show the accident victim is not as hurt or disabled as they have
claimed.

There are laws that prevent private investigators or
surveillance from violating a person’s right to privacy, and a
judge might either disallow or limit consideration of such evidence
unless it meets certain criteria for inclusion.

How does social media activity fit into this debate? Are our
posts online deemed to be public? What if we have taken steps to
maintain privacy by limiting who can see our posts? These are
questions that have become much discussed in the last decade or so
as online activities and social media grow in popularity.

Is There Court Protection of Private Social Media
Accounts?

The Rules of Civil Procedure oblige each party to
disclose “every document relating to any matter in issue in an
action that is or has been in the possession, control or power of a
party”. They must produce these documents unless privilege is
claimed over them, even if it is contrary to their interests in the
action. In Leduc v. Roman (2009
CanLii 6838
), the plaintiff was involved in a car accident in
which he claimed the defendant’s negligence had caused a
personal injury which negatively impacted his enjoyment of life.
The defence discovered the plaintiff had a Facebook page, but it
had been made private so that only the plaintiff’s Facebook
friends could see any posted content beyond his public profile
photo and name. The defence moved for a preservation and production
order of all information on the plaintiff’s Facebook page.

The trial judge held that the Facebook profile pages were
“documents”, that they lay within the control of the
plaintiff, and that they could contain information that “might
have some relevance to demonstrating the plaintiff’s physical
and social activities, enjoyment of life and psychological well
being”. However, the judge also held that the defendant bore
the onus “to demonstrate that this plaintiff has relevant
materials on this plaintiff’s website”.  Merely
speculating about what might exist on the plaintiff’s profile
based on the general use of the social media platform by other
users was not enough. Noting that the same would be true of a photo
album or diary, the judge said the defendant could have asked
whether the plaintiff had photos that demonstrated his lifestyle
before and after the accident, but there was no record that these
questions were asked. The judge stated that the defendant’s
request was “clearly a fishing expedition”, and even if
he were to consider the production order, the request for the
entire site would be far too broad.

The Appeal

An appeal judge disagreed with some of the trial judge’s
reasoning in Leduc v. Roman. Justice D.M. Brown stated
that “from the general evidence about Facebook filed on this
motion it is clear that Facebook is not used as a means by which
account holders carry on monologues with themselves; it is a device
by which users share with others information about who they are,
what they like, what they do, and where they go, in varying degrees
of detail.  Facebook profiles are not designed to function as
diaries; they enable users to construct personal networks or
communities of “friends” with whom they can share
information about themselves, and on which “friends” can
post information about the user”.

Justice Brown held that “a party who maintains a private,
or limited access, Facebook profile stands in no different position
than one who sets up a publicly-available profile. Both are obliged
to identify and produce any postings that relate to any matter in
issue in an action”. He disagreed with the trial judge’s
characterization that the production request was a fishing
expedition because the plaintiff “exercised control over a
social networking and information site to which he allowed
designated “friends” access.  It is reasonable to
infer that his social networking site likely contains some content
relevant to the issue of how [the plaintiff] has been able to lead
his life since the accident”. Justice Brown found that a
principle set out by Justice Rady in Murphy v. Preger,
that a court can infer, from the nature of the Facebook service,
the likely existence of relevant documents on a limited-access
Facebook profile, was not correctly applied by the trial judge.

The appeal judge concluded that: “To permit a party
claiming very substantial damages for loss of enjoyment of life to
hide behind self-set privacy controls on a website, the primary
purpose of which is to enable people to share information about how
they lead their social lives, risks depriving the opposite party of
access to material that may be relevant to ensuring a fair
trial”. While the production order was very broad, Justice
Brown wrote that the defendant should have an opportunity to
cross-examine the plaintiff on the affidavit of documents about
what kinds of posts were made on the Facebook page when few or no
documents are disclosed.

Where Does Case Law Stand Now?

Ten years can feel like an eternity in the ephemeral world of
the Internet. Some older social media sites such as Facebook have
grown in popularity while adapting to the ways social media users
interact with each other, and new entrants are appearing all the
time.

In Isacov v Shwartzberg, (2018
ONSC 5933
), Master D. E. Short summarized relevant case law on
social media in civil actions since Murphy v. Preger and
concluded that “in the present technological environment there
is a need to include Facebook and similar on line data relevant to
matters in issue in personal injury litigation in the appropriate
schedules of each party’s Affidavit of Documents”.

Interestingly, justices in some cases cited in this review have
differed from Justice Rady’s view of the degree to which
privacy must be considered in order to review social media accounts
where privacy controls are used.

Although neither needed to make a ruling on access to a
plaintiff’s private social media page based on the facts before
them, Justice L.C. Leitch in Jones v. I.F. Propco Holdings
(Ontario) 31 Ltd.,
(2018 ONSC 23) noted that she
and Justice Heeney considered the view that if a social media user
without a public profile limits access of their profile to 100 or
so ‘friends’ out of a billion users, it suggests that
social media user has an interest in protecting her privacy.

While social media’s use is in flux, case law has been
consistent in considering public social media posts to be open for
inclusion in the Affidavit of Documents. Accounts that use privacy
settings to protect viewability of content are still deemed to fall
under a party’s obligation to include relevant documents.
Master Short suggested that if a review of these accounts found no
evidence, no harm would come to the plaintiff and her case. If
relevant documents were discovered, the plaintiff would have an
opportunity to provide an explanation at trial.

Apart from rulings on discovery motions, keep in mind that the
scope of evidentiary discovery is generally broader than the scope
of admissibility of evidence at trial. Therefore, it will
ultimately be open to the trial judge to consider the admissibility
of social media evidence at trial should the issue be raised in
that forum. Having said that, however, it may also be fair to say
that once the toothpaste is out of the tube, it is pretty tough to
place back in.

What Does This Mean For Victims of Personal Injuries?

Photos and videos are only moments in time. People with physical
or mental disabilities will often tell you they have good days and
bad days, and what they are able to do can vary significantly. As
personal injury lawyers, we are well aware of how defence counsel
can try to use surveillance to suggest a plaintiff is not as
disabled as they claim. While it is true that plaintiff’s
counsel can often make strong counter arguments, what is also true
is that the way injury victims physically present themselves in
public settings or online can have an impact on their case.

You may believe that you have protected your privacy online by
limiting access to your social media profile to friends. However,
by sharing documents, images or videos that could be relevant in a
legal case, you will not necessarily have the same degree of
privacy in a court proceeding.

After an accident, consider limiting what photos, videos or
personal social media updates you share with others about your
activities; they could unwittingly compromise the case you are
making. Or, if you do continue to share this information, keep in
mind how you may have to explain it if it comes up in discovery or
at trial. As for photos, videos and other social media information
that you posted before the injury occurred, you may also
have to live with the disclosure of some or all of it in a
subsequent legal proceeding despite your privacy settings.

When your finger is hovering over the “post” button,
it is always best to think twice.

The Gluckstein Advantage

Looking out for your well-being and best interests in all
aspects of your case and recovery is part of Gluckstein
Lawyers’ commitment to full circle care. If you or a loved one
has suffered a personal injury, contact us to find out more about
how we can advocate for your needs.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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Media Beat: January 25, 2021 | FYIMusicNews – FYI Music News

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More layoffs at Bell Media

Bell Media has made more layoffs in management just weeks after a sweeping executive shuffle at its head office. Among those caught up in this round of departures are Rob Farina, Head of Content, Strategy & iHeartRadio, who had been in the role since 2016; Tyson Parker, Director, Podcasting and Artist & Music Industry Relations; Lis Travers, General Manager of CTV News Channel, who had been with Bell for 17 years and was a former Executive Producer of Canada AM; Edwina Follows, General Manager of the six Discovery Networks in Canada (Discovery, Animal Planet, Velocity, Science Channel, Investigation Discovery and Discovery GO); Martin Spalding, Regional VP & GM, Local Radio and Television for Bell Media Quebec; and Grant Ellis, GM of BNN Bloomberg. On the West Coast, Les Staff, News Director for CTV News Vancouver, departs. He had been in the role since late 2012, first joining CTV Vancouver as an Executive Producer in 2007. Also in Vancouver, John Voiles is out after nearly eight years as VP, Bell Media Sales, Western Canada. Prior to joining Bell in 2013, Voiles was a VP and General Manager with Astral Radio in Vancouver. Stewart Meyers, Vice President and General Manager for Bell Media Alberta, is also no longer with the company. Read more here. – Connie Thiessen, Broadcast Dialogue

Google Looking for a Fight

In Australia, 95% of online searches are conducted through Google. This week, in a shit fight with government authorities, Google threatened to shut down its entire Aussie operation.

The parties are fighting over how and how much Google should pay news media for links and previews of stories that appear on Google.

Google says it helps news media by sending them readers, and that Google should retain the power to determine how much they chose to pay media. They also argue that unfettered linking is the backbone of the web and it shouldn’t be constrained by government meddling.

The government argues that the power of Google, Facebook, and other tech giants is way out of control and that they have built a good deal of their wealth on monopolistic practices and the work of news media who they exploit without fair compensation. They argue that Google doesn’t just provide links, they monetize these links by advertising in and around them and make money harvesting valuable data about the people who use them. They argue that the news media at the other end of the link should be stakeholders in how the spoils are divided. 

The fight doesn’t seem to be about the principle of news media getting compensated, Google has already agreed to that in France. The fight is over control of who gets to decide how much to compensate the news media and under what terms.

The ferocity of the Google response indicates to me that they view this as the beginning of a fight that is likely to spread globally. This is not just about money. The ad tech industry has shown itself to be above government control in some areas. They are not likely to go quietly. – Bob Hoffman, The Ad Contrarian

Apple out to challenge Spotify’s podcast business

Apple is notoriously secretive about product launches, so we likely won’t know any exact details until the service actually goes live. However, according to the sources who spoke to The Information, the service will have exclusive content, be ad-free, and will charge users a monthly fee. This business model has been tried a few times with podcasts in the past, the biggest example being start-up Luminary. The service launched in 2019 with the goal of becoming the “Netflix of podcasts,” but only had an estimated 80,000 subscribers as of last May.

While ad-free podcast services have a weak track record, Apple has a few advantages that could finally make it work. First, it has tens of billions in cash on its balance sheet, so it will never have a problem paying creators, which is important to get the value proposition high enough so people actually want to subscribe. Second, its ad-supported Apple Podcasts service, which has hundreds of thousands of shows, has been the leader in podcast listenership for many years (although Spotify is quickly gaining ground). Apple could easily market a premium service to its existing users, whereas Luminary has had to rely on paid advertising.

Lastly, Apple will likely bundle this podcast service with Apple TV+, Apple Music, and some of its other subscriptions, making it cheaper for customers to sign up for the service if they are in the Apple ecosystem. 

Should Spotify be worried?

Long story short, no. – Brett Shafer, The Motley Fool

Office Ladies wins Podcast of the Year in American iHeart Radio Podcast awards

Office Ladies is a podcast hosted by Jenna Fischer and Angela Kinsey which premiered on the Earwolf platform on October 2019. In each episode, Fischer and Kinsey, who co-starred on the American television sitcom The Office as Pam Beesly and Angela Martin, rewatch an episode of the show and offer behind-the-scenes commentary, insights and responses to fan questions. They are sometimes joined by guests that include former co-stars, producers and writers. The podcast aims to cover every episode of The Office‘s nine-season run. The managing producer is Codi Fischer (no relation to Jenna) and Sam Kieffer is the show’s audio engineer. Below is the Jan. 20 edition of the show.

Here’s Alan Cross’s affectionate recollection of one memorable Larry King radio show

Back when I was doing a lot of club work, I spent a lot of time listening to Larry King on the drive home when he was on the Mutual Broadcasting System. With last call at 1am, I’d get to hear the last 45 minutes or so of his show, which always ended up with Larry saying he was on his way to Duke Zeibert’s restaurant in DC for some matzoh ball soup.

As a fan of all things broadcast, I studied Larry’s interviewing technique and how he worked the phones on the call-in portion of his program. This led to me one of his autobiographies which included one particular story that rings true with every single guy who has worked as a late-night/all-night DJ.

[embedded content]

Elon Musk targets telecom for next disruption with Starlink internet

Elon Musk became the world’s richest person this month by upending the global auto industry and disrupting aerospace heavyweights with reusable rockets. Now he’s setting his sights on another business dominated by entrenched incumbents: telecommunications.

Musk’s Space Exploration Technologies Corp. has launched more than 1,000 satellites for its Starlink internet service and is signing up early customers in the U.S., U.K. and Canada. SpaceX has told investors that Starlink is angling for a piece of a $1 trillion market made up of in-flight internet, maritime services, demand in China and India — and rural customers such as Brian Rendel. – Dana Hull, Bloomberg

Why Amazon’s move to drop Parler is a big deal for the future of the Internet

Cloud computing seems basic today, but it was a revolutionary concept, serving as the backbone for pretty much the entire modern digital startup ecosystem—eliminating the costly and time-consuming process of spinning up your own servers got rid of an immense hurtle for fledgling companies, making them better able to compete with—and in some cases topple—existing hegemons. But that convenience came at a cost: modern Internet services are increasingly built on Amazon Web Services (AWS) and its rivals, like Microsoft Azure and IBM Cloud. That has given those firms tremendous sway over what conduct is and is not acceptable on the Internet—in terms of free speech, they have become even more powerful than, say, Apple. It’s one thing to stop offering an app, it’s another to destabilize or block another company’s entire online operation.

Whether AWS and rival services should wield such power is the central debate in Parler’s subsequent lawsuit against Amazon, which underscores just how reliant Parler was upon AWS.

Rolling Stone now publishing advertorial content

While many media companies feature clearly signposted branded content on their websites, it is less common for a major journalism brand to offer third parties, including PR professionals, the chance to pay to write pieces for publication.

A spokesperson for Penske Media Corporation, which owns the magazine, said that Rolling Stone does not allow paid content to run as editorial in any context, and that all such content was clearly labelled.

Pieces already published as part of the scheme include a set of positive predictions for the future of the cannabis industry by a PR executive who represents a cannabis producer, and a piece praising the social nature of sports betting by the founder of an online sports betting community. – Archie Bland, The Guardian

Trump-tied lobbyists paid massive sums to push pardons

Washington lobbyists with close ties to outgoing President Donald Trump were paid lucrative sums by clients angling for last-minute pardons from the president. 

Matthew Schlapp, chairman of the American Conservative Union and a close Trump ally, brought in the largest haul. According to a lobbying filing released Thursday night, Schlapp was paid a whopping $750,000 since mid-December to lobby Trump to pardon Parker Petit, a top Republican donor who served as Georgia finance chairman for Trump’s 2016 campaign. Petit was convicted of securities fraud in November and faced up to 20 years in federal prison. – Karl Evers–Hillstrom, OpenSecrets.org

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Canadians support government crackdown on hate and racism on social media, poll finds – Global News

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A poll conducted in the wake of the storming of the U.S. Capitol by Donald Trump supporters and far-right groups has found that most Canadians want government action against online hate.

Commissioned by the Canadian Race Relations Foundation, the poll results also show that almost three-quarters of Canadians are concerned about the rise of right-wing extremism and terrorism.

The results were released Monday by the CRRF, a Crown corporation, as the Liberal government is preparing to introduce measures to regulate social media content.

“The fact that most Canadians see this as a problem is all the more reason why our government needs to make online hate speech regulation a policy priority,” said Mohammed Hashim, the foundation’s executive director.

Read more:
Neo-Nazis, extremists capitalizing on COVID-19, declassified CSIS documents say

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During the 2019 federal election, Prime Minister Justin Trudeau said he would require social media companies to remove illegal content such as hate speech within 24 hours or face “significant financial penalties.”

The pledge remains unfulfilled, but the government said last week it would soon introduce legislation to regulate internet content.

Under the proposal, online platforms would have to “monitor and eliminate illegal content,” said Canadian Heritage Minister Steven Guilbeault’s spokesperson Camille Gagné-Raynauld.

“That includes hate speech, terrorist propaganda, violent content, child sexual exploitation and the non-consensual sharing of intimate images,” she said.

“We will also ensure that victims are heard and protected by providing them with a simplified, safe and independent complaint process.”


Click to play video 'Pressure on social media companies to crack down on hate'



5:06
Pressure on social media companies to crack down on hate


Pressure on social media companies to crack down on hate – Mar 15, 2019

The Abacus Data poll, which surveyed 2,000 Canadians between Jan. 15 and 18, reported that 58 per cent felt hateful content on the internet was increasing, and 60 per cent wanted greater federal regulation.

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Support for requiring social media companies to remove racist or hateful content within one day was pegged at 80%, while 10 per cent were opposed, the poll said.

It also reported approval of other measures, such as requiring social media companies to remove users who shared racist or hateful content on their platforms.

Read more:
How the Toronto-registered websites of al-Qaeda and the Pakistani Taliban were taken down

Facebook, Twitter and other tech giants have responded to major incidents of extremist violence such as the New Zealand mosque attacks by deplatforming users for violating their rules.

The siege at the U.S. Capitol during the confirmation of President Joe Biden’s election victory triggered another purge of far-right groups like the Proud Boys from mainstream platforms.

But Bernie Farber, chair of the Canadian Anti-Hate Network, said allowing companies to police themselves had not worked.

“They self-regulate and they’re not doing a good job,” he said.

He said right-wing extremists were exploiting online platforms, which he called a “tool for some of the most pernicious hate groups on the continent and around the world.”

“They exist only because they are able to use these platforms,” he said. “That is why they’re growing. That is why we saw what happened in Washington. There have to be rules.”

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Read more:
Over 6,600 right-wing extremist social media channels, accounts linked to Canada, study finds

Twenty-five per cent of those polled were extremely concerned about the rise of right-wing extremism and terrorism, while 23 per cent were very concerned, 23 per cent were somewhat concerned and 20 per cent were “not that concerned.”

Youths aged 18 to 29, racialized Canadians and those on the political left were most likely to be concerned. Among the political right, 60 per cent were concerned and 36 per cent unconcerned about the issue.

The poll found that a third had seen online content inciting violence, while six per cent had experienced it. For racialized Canadians, the figures were significantly higher, at 41 per cent and 11 per cent.

“Across every item, racialized Canadians are more likely to report experiencing or seeing content online,” the poll said.

Overall, 49 per cent thought online hate and racism was a “big problem,” while 44 per cent considered it a “minor” problem. Youths and left-leaning Canadians were most likely to see it as a problem.

“We are encouraged that Canadians appear to be willing to support a strong framework for ensuring we minimize hate and harassment — even in the darkest corners of virtual society,” Hashim said.

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The poll’s margin of error was 2.2 per cent, 19 times out of 20.

Stewart.Bell@globalnews.ca

© 2021 Global News, a division of Corus Entertainment Inc.

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Scientists launch social media campaign to counter COVID-19 misinformation – CP24 Toronto's Breaking News

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TORONTO — Scientists and health experts are launching a nationwide campaign to counter misinformation about COVID-19 and related vaccines.

The .ScienceUpFirst initiative is an awareness and engagement campaign that will use social media to debunk incorrect information and boost science-based content.

The campaign team says in a news release that it emerged from conversations between Nova Scotia Sen. Stan Kutcher and Timothy Caulfield, Canadian research chair in health law and policy at the University of Alberta.

The initiative is now being led by the Canadian Association of Science Centres, COVID-19 Resources Canada, and the Health Law Institute at the University of Alberta.

Anyone interested in participating can follow ↕scienceupfirst and use the .ScienceUpFirst hashtag on Twitter, Instagram and Facebook, and tag the account to amplify science-based posts and alert it to misinformation posts.

The campaign says there is a marked rise in misinformation and conspiracy theories related to COVID-19 vaccines, virus transmission and government response, and it represents a threat to the health and safety of Canadians.

“Misinformation is a dire, imminent threat to the lives of all Canadians and is proven to be one of the factors fueling COVID-19 infections, and dissuading Canadians from getting vaccinated,” says Caulfield.

“The .ScienceUpFirst initiative seeks to help fill an urgent need to beat back misinformation with the truth, and save lives.”

This report by The Canadian Press was first published Jan. 25, 2021.

 

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