To Post or Not to Post… Facebook in the Personal Injury World
Tara Miller – August 2015
As of March 2015, Facebook had over 1.44 billion active monthly users. These users are largely people like you and me who share photos, links and exchange other personal information. If you engage the highest privacy settings on Facebook, then you likely have an expectation that this information will remain private.
In an increasingly social medial savvy world, information contained on Facebook sites can have hazards, particularly if the site is not set to the highest privacy settings. Defence counsel will often search social media sites (Facebook, Instagram, Twitter, MySpace etc.) as part of their investigation of plaintiffs in person injury actions. If publicly accessible, pictures and other personal information can be relevant in assessing the impact of an accident on the person’s health, ability to work and participate in recreational activities.
With the increase in popularity of social media sites, a body of law has developed in Canada where Facebook information has been used to contradict evidence given at trial by plaintiffs. In Newfoundland, the plaintiff in Terry v. Mullowney, 2009 NLTD 56 suffered injuries as a result of two different motor vehicle accidents. He testified at trial his social life had been greatly impacted as a result of these injuries, he was unable to play pool and had little or no social life.
Defence counsel obtained numerous photos of the plaintiff from his public Facebook site showing him going to and hosting parties, attending weekend outings at summer cabins, consuming alcohol frequently and marijuana daily, and communicating and socializing with friends on a regular basis. The trial judge addressed the impact of the Facebook evidence:
Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court.
Given the plaintiff deleted material and then shut down his Facebook account entirely, the trial judge made an adverse inference and concluded there was likely much more material than that presented in Court which would have further damaged the plaintiff’s personal injury claim.
Most Facebook users engage privacy settings, avoiding the public distribution of information such as in the Terry v. Mullowney case. However, the reality of Facebook is that a person’s home page can still contain information which defence counsel could use to argue for the production of the person’s private information.
Mere proof of the existence of a Facebook profile does not automatically entitle defence counsel to gain access to all material placed on that site. Before being able to obtain an order for production of private pages of a plaintiff’s Facebook account, the defence must show some evidence to prove that the information from the private pages is relevant to the issues in the legal action.
For example, if a plaintiff says that as a result of their accident injuries they are unable to participate in any of their pre-accident recreational activities which included running but has a profile and/or cover photo a picture of them participating in a 5k race after the date of the accident, then the groundwork may be laid for defence counsel to argue for production of the private pages. Defence counsel will argue that the person’s ability to participate in a race is relevant to the alleged limitations as a result of the accident. They will argue the court should infer that contents of the individual’s private pages will be similar to contents of the public page. And just like that, the information the plaintiff thought was private could be ordered by a Court to be produced!
There can be real challenges for plaintiffs’ using Facebook and social media when it comes to the impact this use can have on their personal injury claims. It is wise to consider not using these sites at all until the conclusion of your case. If you do continue your usage, then you are well advised to ensure the highest privacy settings are engaged and you are careful with the material you post.