The British Columbia Supreme Court declared that Facebook photos of the accident victim vacationing and playing sports must be handed over in order to better evaluate her personal injury claim stemming from a motor vehicle accident.
After a 2008 motor vehicle accident in which Tamara Fric sustained injuries including chronic severe headaches, injury and pain to the upper back and neck, she is suing for damages. Fric claims that the injuries caused by the accident resulted in a loss of the amenities of life, a loss of earning capacity and a loss of mobility among other things.
The Insurance Corporation of British Columbia (ICBC), submitted an application to obtain a complete copy of Fric’s Facebook profile website, including all photos and related digital information, such as the date and time of when each photo was taken. Since the accident Fric has engaged in physical recreation and sporting activities such as hiking, scuba diving, curling and dancing and such photos have been added to her online Facebook profile. Fric’s Facebook privacy settings ensure that her photos are only accessible to her Facebook ‘friends’ and not to the public. The ICBC wanted access to these photos as they could help determine the validity of Fric’s claims of physical impairment and loss of amenities of life since the accident.
In Fric v. Gershman, [2012] B.C.J. No. 821, the Court held that in order to ensure a fair trial some of Fric’s photos ought to be disclosed, including some of those stored on her private Facebook profile. This way the ICBC has the opportunity to examine her physical activity ability since the accident. However, in the interest of relevancy and privacy, the court held that the order sought by ICBC was too broad and limited the photo disclosure to those of Fric’s vacationing and sporting activities at school since the accident. Location, date and time data of the photos would also have to be provided, but not commentary, so as to avoid photos not being taken out of context.
In the debate between relevancy and privacy the lesson learned is that social media resources, such as Facebook, must be used with caution. Images and information obtained from social media resources are increasingly making their way into Canadian court cases. Be aware of what photos and commentary you, your friends and family are posting as they might give cause for concern in future. Seemingly private photos and information may be fair game in assessing claims for damages.
For more on the potential effect of social media on your insurance claims please see out other blog posts:
Social Media no Friend to Insurance Litigants
Preserving social media evidence without informing our clients. Is this where the law is headed?,
Facebook, YouTube, Twitter and other Social Networks – Risky Business?