The Increasing Relevance of Social Media in FSCO Arbitration

By Roger Foisy on December 12th, 2012

A 2012 appeal decision by the Financial Services Commission of Ontario (FSCO) confirms that Facebook can be damaging to motor vehicle accident insurance claims.  This appeal confirms an earlier decision that limited access Facebook photographs are relevant in assessing accident benefits claims.

In 2008, Eniko Rakosi was injured in a motor vehicle accident and applied for statutory accident benefits from her insurer, State Farm.  There ensued disagreement regarding her entitlement to attendant-care, income-replacement, and medical benefits.  Rakosi applied to FSCO for arbitration.The FSCO appeal decision determined that all Rakosi’s photographs posted to her Facebook profile be disclosed (including any limited-access or private portion of her profile) from the two-year period between the accident and the end of her accident benefit claims.

This decision came after State Farm had already managed to obtain public photos on Rakosi’s social networking profiles on Facebook and Hi5.  These photos depict Rakosi engaging in a variety of social and recreational activities, including ‘zip-lining’ (sliding down an aerial line).  State Farm argued that these photos revealed Rakosi’s actual physical ability, specifically, her ability to work and engage in certain self-care activities.  Rakosi claimed that her physical ability was limited in part to her chronic pain condition originating from the accident.  In this decision, the issue of privacy was set aside in favour of the insurer’s right to access potentially relevant documentation.

In the earlier decision, Rakosi v. State Farm, the arbitrator determined that there could be no reasonable expectation of privacy after Rakosi had already shared her photos with 332 friends.  In that decision, the arbitrator questioned “whether the documents ha[d] a rational connection or semblance of relevance to the issues in dispute.”  In an appeal, the arbitrator further clarified that the “semblance of relevance” test was more accurately represented as “reasonably necessary” or “relevant” as to become the stricter test.  It was held that the photos met the relevancy test.  

The arbitrator also found that the cost and practicalities of compliance with orders to produce the Facebook photos were “proportionate to the importance and complexity of the issues.”  The result was that the Facebook photos had to be submitted to the insurance provider to assess Rakosi’s claims.

An earlier FSCO decision had a different result.  In Prete v. State Farm, it was held that there were no Facebook pictures on Prete’s profile that related to Mr. Prete’s claim for benefits.  Furthermore, pictures of him socializing were not relevant in determining his capacity to work or engage in self-care activities.  The arbitrator held that some of the photos were potentially personally sensitive and were meant to be shared with only select persons.  For these reasons disclosure of the photos and videos were not admissible.

The question of how social media—particularly in relation to online photos—will be considered legally has yet to be determined.  The current trend suggests an increasingly prominent role of social media in personal injury claims.  Insurance companies have used, and will continue to use, social media to test the validity of compensation claims.

For more on social media impacting insurance claims, please see our other related blog posts:

Social Media no Friend to Insurance Litigants

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