"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.
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
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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.