Personal Injury

Privacy interests of plaintiffs on social media 'still not settled law'

By AdvocateDaily.com Staff

As a recent ruling suggests, allowing several 'friends' to access the private section of a Facebook account does not always mean a plaintiff is giving up privacy rights to that information, London personal injury lawyer Maia Bent tells Law Times. Read Canadian Lawyer

In the case before the Ontario Superior Court, says the article, the defendants were seeking Facebook posts and comments from the plaintiff from a number of years before a 2014 incident until the present.

Although the plaintiff produced information from the public portion of her Facebook page, the judge ultimately rejected the defence’s request for the private posts, due to a lack of relevance.

“On this motion I have concluded that there is no evidence that the posts are relevant because the activities depicted in the photographs are not relevant to the extent of the plaintiff’s physical limitations since the accident,” according to the ruling.

“The conclusion that users have a privacy interest in the private portions of their Facebook accounts is more persuasive than the conclusion that they do not because they shared the account with a number of their Facebook ‘friends.’ Users have the option of keeping their Facebook accounts entirely public. The plaintiff in this case did not,” said the decision.

At the same time, Bent, partner with Lerners LLP, who is not involved in the case and comments generally, tells Law Times that “this is an area that is still not settled law."

“A number of cases seem to be going to broader disclosure of social media posting as courts look at probative value versus privacy interests,” she adds.

One of the factors in this analysis is the privacy setting of the individual on their social media accounts, says Bent.

However, she explains, there can be a “fallibility” in putting too much emphasis on a user’s privacy settings when deciding whether social media information should be produced to the defence.

“More and more older people are on social media. They may be unfamiliar with these features,” says Bent.

Ultimately, Bent tells Law Times that clients need to be informed about the dangers of social media posts during the course of litigation and also to restrict access to the general public.

“We advise clients at the outset in the same way we might speak about surveillance,” she says.

It is also essential that lawyers for plaintiffs conduct online research related to the defence, such as its experts and their qualifications, she adds.

“We search social media for every defence witness. You would be surprised what is out there,” says Bent.

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