“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.
