Social Media, Privacy, and High-tech Fishing Expeditions: Digital Evidence in the 21st Century

In today’s high tech world, the ubiquity of social media, wearable technology and the digitization of everything we touch, see and do leaves behind a trail of digital fingerprints. As such, it’s no surprise that starting a personal injury lawsuit in the digital age often comes with many challenges; one of which is the potential production of “private” social media details to insurance companies.

Information found on social media platforms such as Facebook, Twitter or Instagram may depict claimants engaging in activities that can be a determining factor in the outcome of a case.

Claimants are often surprised when this information is inquired about during their cases. During the examination for discovery phase, lawyers for the insurance companies will often ask if the claimant has a social media account, which could be relevant to what is at issue.

This topic has garnered much discussion in the courts.  In the case of McDonnell v. Levie, 2011 ONSC 7151 Justice Arrell held at paragraph 15 that:

“where the plaintiff puts her social enjoyment of life in issue and alleges various activities that she is unable to do then photographs of her social life and activities, before and after the alleged trauma, which she concedes are on her Facebook account, are produceable”

Justice Arrell continues at paragraph 16 to conclude that:

“The plaintiff argues that privacy concerns should be sufficient to prevent production. I disagree. The plaintiff has put her social life in issue as well as her ability to do certain activities being negatively affected by her injuries from the accident. These issues because of this law suit are therefore now part of the public domain.”

Given the possibility of this information being produced, as a claimant it is important to be accurate and truthful about what is being reported to doctors and medical examiners to avoid contradictions. It is also important that evidence given during examination for discovery is consistent with what might be depicted on social media platforms.

Photos depicting a claimant leading an active social and recreational lifestyle could have an affect on the amount of damages awarded by a court, particularly if one is claiming to be unable to leave the home due to pain. The potential to be perceived as an “exaggerator” or “malingerer” by the insurance company – or worse, a jury – is something that claimants must be aware of. After all, many cases can be won or lost in court on the claimant’s credibility alone.

Of course, not everything depicted on social media is always so clear-cut. Postings on social media only capture a moment in time, which may or may not be an accurate depiction of one’s true situation. Just because someone is seen smiling in a social setting in a Facebook picture doesn’t necessarily mean his or her claim for severe depression is invalid.

Furthermore, several recent court decisions have sided with claimants allowing them to deny the requested production of photos and other information on their social media accounts. One such decision is Stewart v. Kempster 2012 ONSC 7236. In this case, the insurer sought various vacation photographs and the contents of the private portion of the claimant’s Facebook account. The claimant alleged serious and permanent injuries including jaw, neck, head, ear, back, left leg, foot, and left wrist pain. The injuries were also alleged to include anxiety, depression, emotional trauma, weakness, and reduced energy. In denying the production of these records, the court stated at paragraph 15:

I am not persuaded that the photographs in question have any real relevance to the issues in this case. I quite agree that if there were photographs that showed the plaintiff water skiing or rock climbing, they would be relevant to demonstrate the extent of her physical limitations following the accident. The photographs in question, though, say nothing about the physical limitations that she has testified she is suffering from. An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.

Similarly, in the decision of Garacci v. Ross 2013 ONSC 5627, the insurer sought production of approximately 1100 photographs located on the private portion of the claimant’s Facebook account and related profile pages. The insurer further claimed that the public profile of the claimant’s page showed photographs of her socializing with friends, climbing a tree, wrestling a friend to the ground, and having dinner and drinks. Based on this, the insurer argued there must be similar activities among the claimant’s 1100 private Facebook photos.  In denying the production request, the court held the following at paragraph 9:

On motions of this nature it must be emphasized that the “semblance of relevance” test no longer applies. It has been replaced with the stricter “relevance” test. Restraint must be exercised in the discovery process… [The Claimant’s] evidence is that Facebook is her photo album. It is where she keeps all of her personal pictures to view and to share with friends. In my view, the defendant’s request is tantamount to a request that [the claimant] produce every photograph taken of her since the accident. This is an extremely broad request and in my view amounts to nothing more than a high tech fishing expedition. The defendant simply wishes to rummage through 1100 of Christina’s personal photographs in the hope that something useful or interesting might turn up. That is not an appropriate or proportional form of discovery. [emphasis added]

Each case will be decided on its own set of facts. The courts have rendered decisions on both sides of the fence. However, the prudent thing to do might simply be to disconnect from these platforms if possible until after resolution of the legal case to avoid the risk of unwelcome perceptions.

Written by

Lawson is the founding lawyer of Hennick Law.

He received his Bachelor of Science degree in Biology from York University, and then attended University of Ottawa’s Faculty of Law graduating with a Bachelor of Laws degree in 2009 before being called to the Ontario Bar in 2010.

Lawson articled with a boutique litigation firm where he gained experience in a variety of practice areas including representing Indian Residential School survivors to obtain compensation through the Independent Assessment Process for sexual and physical harms suffered.

Since his call to the bar, Lawson has devoted his legal practice exclusively to the area of personal injury and employment law. He started his firm in 2019 and regularly acts for clients on injury claims including motor vehicle accidents, slip and falls, product liability, dog bite cases and employment law disputes. He regularly appears before the Superior Court of Justice and has also appeared before the Financial Services Commission of Ontario (FSCO) and License Appeal Tribunal.