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McLeish Orlando: Nick Todorovic and Krystal Leonov, Student-at-Law

The social media effect: disclosure obligations in personal injury claims

McLeish Orlando LLP

Written By: Nick Todorovic and Krystal Leonov, Student-at-Law

Today, social media platforms such as Facebook, Instagram and Twitter have dominated how people express themselves and interact with each other; whether it be by picture, video, status update or hashtag. This new-age form of human interaction does not discriminate based on age either. Even President Donald Trump, at age 71, Tweets more than the average teenager. Yet with this new wave of expressive digital content comes with it a caution; be careful what you post, because it may be used against you down the road.

In the context of civil litigation, and more specifically personal injury, these social media platforms are constantly placed under surveillance in order to obtain favorable evidence that put into question the Plaintiff’s credibility. For example, the Plaintiff alleges that they can no longer go hiking as a result of their injuries but then post on Instagram photos of their post-accident hike through the Swiss Alps. This could be fatal to their claim.

Disclosure Obligations

Social media data (i.e. instant messages, pictures and personal information etc.) stored on websites such as Facebook, Instagram and Twitter are considered to be electronic documents for the purposes of discovery. This interpretation is reinforced by the Rules of Civil Procedure under Rule 30.01(a) which defines “document” to include “data and information in electronic form.”

There is a well established line of authority for the principles that the content of a Plaintiffs Facebook profile may be relevant to the issues in a personal injury action, and that such information must be produced, if relevant.

Admissibility and Relevance

A review of recent case law demonstrates the interplay between privacy rights and disclosure obligations in relation to conversations and pictures uploaded onto social media websites. While it is true that some Canadian courts have adopted a more nuanced and restrictive approach to the admissibility of social media evidence, it appears that most are open to admitting social media as evidence if it is both relevant and material to the case.

In Leduc v Roman 2009 CarswellOnt 843, the Ontario Superior Court took judicial notice that Facebook is the largest photo-sharing application in the web and (at the time of the ruling) reported more than 14 million photographs uploaded daily. Facebook allows the user to set privacy controls so as to limit access to some or all of the content on his or her profile to certain individuals that are added as “friends.” The effect of these privacy controls is that the only way for a Defendant in a tort action to obtain privacy-restricted content is through the discovery process.

That being said, the mere fact that a Plaintiff maintains a Facebook profile does not lead to an automatic inference that it contains information relevant to the litigation. It is up to Defence counsel to establish that there is relevant information within the Plaintiff’s social media profile. This approach was confirmed in Schuster v Royal & SunlifeAlliance Insurance Co. of Canada, 2012 ONSC 1733.  

In Leduc, the Plaintiff was involved in motor vehicle accident and claimed damages for loss of enjoyment of life. He claimed that he was unable to participate in sport activities that he enjoyed before the accident. The Defendant tried to access his Facebook profile however; it was restricted due to privacy settings. As such, the Defendants moved for an interim preservation order of all information on the Plaintiff’s Facebook profile.

The motion was dismissed and an appeal by the Defendant was allowed in part. On appeal, the Court held that the Plaintiff had a positive obligation to produce any information posted on Facebook that demonstrated activities and enjoyment of life. The Court inferred from the social networking purpose of Facebook that the Plaintiff’s profile likely contained information relevant to the issue of the how the Plaintiff had been able to lead his life since the accident. However, mere proof of the existence of a Facebook profile does not entitle a party to access all material on the site. Therefore, the Defendant’s request for production of the entire profile was overly broad.

In the more recent case of Wilder v Munro, 2015 BCSC 1983, the Defendant’s brought an application for production of documents including photographs and videos of the Plaintiffs social media accounts. The Plaintiff had been involved in a motor vehicle accident which had significantly limited her abilities to pursue a career as a trained dancer. The court ultimately held that there was little probative value in the Defence’s request as the Defendants already had dozens of photographs and more than ten video’s which show the Plaintiff’s physical and social activities over the years.

Is Social Media Really a Reliable Source as Evidence?

Although social media evidence is used to undermine a party’s claim, lawyers need to be alert to the fact that people frequently portray a certain image online that is not a true representation of their life. People often present a hyper-idealistic version of themselves as opposed to who they really are. It has been argued that the “social media effect” creates a false sense of self and self-esteem through the use photos, likes, fans, comments etc. As such, social media can be a difficult kind of evidence to use because it consists of a small snapshot of what people want others to see and hear.

In the 2014 case of D(J) v Chandra, 2014 BCSC 466, the court stated “ a snapshot does not show anything but a moment in time, and does not disprove that the Plaintiff also had many times…declined to participate in activities or felt significant pain after trying to engage in the activities.”

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