Social media plays a prominent and important role in our day-to-day lives—enabling us to share photos we like, post updates about experiences, and catch up with friends and family. But if you have sustained an injury and are involved in a personal injury case, these simple posts and pictures can have major implications.
Today, social media evidence is most commonly used in personal injury, family law, and employment practices. Over half of the lawyers surveyed in one report noted a rise in the last two years in lawsuits related to data, images, and posts made on social media networks and other online platforms.
Here, I take a closer look at this topic and explore the ways in which people are using social media, how it is impacting personal injury law, and some steps plaintiffs can take to keep themselves protected when using social media.
How Canadians Are Using Social Media
Digital technologies, social media included, have become important parts of many people’s lives. Regardless of their age or gender, individuals are posting, sharing, or being tagged—and usage rates are only going up.
In 2017, over 22 million Canadians (64% of the population) were social media users. Ontario accounted for nearly half of that number with 10 million active social media users (67% of the population) across the province. Two-thirds of all social media users in Canada—especially those on Facebook, Instagram, and Snapchat—use the platforms on a daily basis. Facebook remains the most popular platform with 82% of individuals 18-35 and 61% of people over 55 using it regularly.
When we take a closer look at the demographics, we find some compelling trends. Maybe the most interesting among them is that although young people continue to dominate when it comes to the regular engagement with social media, the fastest joining age group is actually older Canadians. Between 2013 and 2016, the number of Canadians between the ages of 65 and 74 using the internet increased 16%, while those 75 and older saw a 15% increase.
How Social Media Is Impacting Personal Injury Law
A decade ago requests for access to plaintiffs’ social media profiles and the court’s willingness to accept social media as evidence would have been exceptions, but today this is rapidly becoming the norm. The case of Ottenhof v Ross (2011), for example, concluded that pages of social media accounts are documents for the purpose of discovery and should be listed in a party’s affidavit of documents if relevant. In Ottenhof, the plaintiff brought an action claiming damages for an assault by the defendant. The defendant discovered the existence of the plaintiff’s Facebook profile and requested access, but the plaintiff refused. In a motion to ‘compel refusal on an examination of discovery’, the judge held that the defendants have permission to cross-examine the plaintiff on the affidavit of documents and that the plaintiff must preserve Facebook contents like any other piece of evidence. In addition, the judge stated that access to a party’s social media account by acquiring his or her password is overly intrusive unless the party claims a level of disability that inhibits use of technology as part of the damages.
Many people might assume that photos and posts hidden behind privacy settings cannot be seen or accessed, but this is not always so. Consider two relevant cases that highlight this:
- Leduc v Roman (2009) held that both public and private social media profiles can be scrutinized for evidence. Although the plaintiff’s pictures were under a private setting, the court ruled that because posted public pictures on Facebook as well as hundreds of her friends had access to her private Facebook content, the plaintiff did not have a serious expectation of privacy. Essentially, if a plaintiff put out evidence publicly on social media, any private information can be cross-examined to learn what relevant content was posted on the profile.
Where, in addition to a publicly-accessible profile, a party maintains a private Facebook profile…it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant posting on the private profile.
– Superior Court Justice David Brown in Leduc v Roman
- Papamichalopoulos v Greenwood (2018) affirmed the upward trend towards the production of private social media material. In Papamichalopoulos v Greenwood, the court ordered the injured plaintiff to turn over social media material despite it being shielded under a privacy setting. The plaintiff had claimed damages for sustained back injuries. However, publicly available Facebook pictures revealed the plaintiff socially active with no signs of pain or discomfort. Citing Leduc, the court argued that it is reasonable to assume that content on a party’s public profile is similar to content in their private profile. Therefore, access to the plaintiff’s private social media was considered reasonable because pictures of the plaintiff before and after the injury can shed light on the extent and legitimacy of the injury.
As these examples illustrate, it has in many ways become standard practice for lawyers to examine the social media profiles of a plaintiff in a personal injury case.
The Role Social Media Can Play in Determining the Extent of Injuries in Personal Injury Cases
In personal injury cases, social media evidence can play a role in helping the defence disprove or discredit a plaintiff’s claim about the extent of their injuries. A few recent cases highlight the importance of social media evidence in the litigation process including:
- A 2007 case, Kourtesis v Joris, in which the court dismissed the plaintiff’s personal injury claims because pictures from her social media account contradicted the extent of her injuries.
- A 2015 case in which a claimant from British Columbia sued for damages resulting from two car accidents that left her depressed and stuck to her house. The plaintiff’s case was dismissed because social media pictures revealed her partying, drinking, and engaging in fun activities that were inconsistent with her claims of emotional and physical trauma.
Despite the above examples, it is important to acknowledge that the courts have treated social media evidence with some skepticism when assessing emotional trauma in particular. Evidence shows that individuals generally post positive content on their social media profiles that does not necessarily accurately represent their life. Certain pictures may only be snapshots in time, which do not reflect the significance of a person’s pain or suffering. Thus, the judge has the discretion to weigh the evidence based on the entirety of the facts and not simply on a single social media post.
Nevertheless, there is always a risk that social media content may sway a jury against a claimant who posted images, statements, or other information online that contradicts their claim.
How Plaintiffs Can Protect Themselves on Social Media
Although you don’t need to avoid social media entirely during your case, it is in your best interest to exercise caution in terms of how, when, and why you use it.
Some tips to keep in mind are:
- Don’t post about your lawsuit or conversations you have had with your lawyer.
- Change your privacy settings to prevent being tagged in photos after the event or ask anyone who has posted any to remove them. Talk with your friends and family as well so they know and understand what your new social media preferences and limitations are.
- Avoid posting, tweeting, sharing photos, or releasing other status updates.
- Never accept a connection request from an individual you neither know nor recognize.
The general rule of thumb is that if you wouldn’t be comfortable sharing it with the defence lawyers, don’t post it.
Based on the exponential increase of social media networks and platforms among Canadians across all ages, personal injury lawyers must ensure that claimants suffering from physical or emotional injuries and who are seeking legal help are prepared for all possible outcomes. More and more this means warning prospective clients of the pitfalls of social media and how it might negatively impact their case.
Approaching a case with detailed preparation and a solid plan will alleviate potential issues and benefit a client in the litigation process. Building a relationship between a lawyer and a client that both manages and monitors social media use can further aid a client’s case or deter any issues that may arise. Remember, social media posts may not accurately represent a person’s everyday life, which can ultimately affect what a client deserves to receive as compensation for their loss.
If you have sustained a personal injury at another party’s fault, please contact me and my team of experienced personal injury lawyers for a free consultation.
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