Personal-injury lawyers across the country are warning their clients to be careful about what they post on social media because some of that information could be used against them.
While it's been common practice for years for defence lawyers and insurance companies to hire private investigators to conduct surveillance on plaintiffs to see if they've lied about or overstated their injuries, they now are also turning to the courts to gain access to photos and other information contained in plaintiffs' Facebook, Twitter and other social media pages in a further attempt to discredit them.
"Just because you've ticked off the privacy settings doesn't necessarily mean that it'll remain private," said Halifax personal-injury lawyer John McKiggan, who blogs frequently on the subject.
McKiggan added that mining social media pages is a lot cheaper than hiring an investigator to spend hours to "sit in the bushes."
The law firm of Aaron Waxman and Associates in Toronto has posted on its website a warning to clients to "be aware" of Facebook friend requests from people they don't know because it could be for the purposes of an investigation. "These are unethical practices," the website says.
A review of recent court rulings shows that while judges have been mindful of privacy rights and generally haven't allowed for broad "fishing expeditions" of the contents of someone's Facebook page, they have in some cases ordered personal-injury claimants to disclose at least some materials if they're deemed to be relevant to a case.
The B.C. Supreme Court issued such an order last month.
Tamara Fric, a recent law-school graduate, is seeking damages in relation to a motor-vehicle accident that happened in November 2008. Fric claims she suffered chronic severe headaches and back and neck pain, and that those injuries impacted her ability to study and engage in social activities. She is also concerned her injuries are impacting her work performance.
The defence asked the court for access to all digital materials on her Facebook site because they could reveal a level of activity belying her complaints of pain and discomfort.
The plaintiff said the request was overly broad and that the photos would only reveal "snapshots in time" without a proper context.
However, B.C. Supreme Court Master Carolyn Bouck ruled that photographs showing the plaintiff engaging in sporting and recreational activities — including hiking, scuba diving, curling and dancing — were "relevant in discovering the plaintiff's physical capacity since the accident."
The court, however, limited disclosure to photos of Fric participating in a law school sports tournament the month after the accident and photos from vacations taken since the accident.
One of the earliest court decisions ordering the disclosure of contents from a private Facebook page came in 2007 in the case Murphy v. Perger, in which the plaintiff claimed loss of enjoyment of life following a car accident.
Ontario Superior Court Justice Helen Rady concluded that any invasion of privacy was minimal and outweighed by the defendant's need to have the photographs to assess the case.
Plus, Rady said, "the plaintiff could not have a serious expectation of privacy given that 366 people have been granted access to the private site."
Not all defendants have been successful, however, in getting plaintiffs to cough up their Facebook photos.
Earlier this year, a judge in Saskatchewan denied a bid by the City of Regina to access the Facebook photos of a woman who claims she suffered permanent injuries stemming from a car accident in 1994 involving a police cruiser.
Destany Wesaquate, who was an infant at the time of the accident, claims she suffered a brain injury, which led to "loss of enjoyment of life and impairment of conjunctive abilities."
The city's attorneys sought access to Wesaquate's private Facebook page in an attempt to show she was leading a normal life.
However, Regina Court of Queen's Bench Justice Ian McLellan denied that bid, saying that the defendant needed to produce some evidence "as opposed to mere speculation" that there were relevant materials on the Facebook page.
"If I were to allow the defendants' application, it would be tantamount to holding that mere proof of the existence of a Facebook site should allow a party to gain access to all material placed on that site. It would be an invasion of the plaintiff's privacy that I am not prepared to make."
Whether disclosures of materials from social media sites actually end up making a difference in civil lawsuits is hard to say because the vast majority of cases end up settling, McKiggan said.
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