The attitude in our courts towards social media has shifted drastically for the worse over the last decade. In 2012, for example, content from “private” social media sites was perceived as exempt from disclosure to the defendant. Plaintiffs were understood as justified in restricting access to the content.
Recently, Master Short revisited this contentious topic in Isacov et al v. Schwartzberg (2018 ONSC 5933). The plaintiff was injured in 2012 when the defendant motor vehicle ran over her foot. She claimed that her ongoing impairments prohibited her from continuing her career as a professional ballroom dancer because she was unable to wear high heels.
Trial in this matter is set for November 26, 2018. In May 2018, the defendant’s insurer received a private investigation report that contained pictures of the plaintiff from her friend’s Instagram account that showed her dancing in high heels. Based on the report, the defendant sought production of the plaintiff’s social media accounts for three years prior to the collision to the date of trial.
The plaintiff refused, without admitting or denying that she had any social media accounts. There was no previous case where such a request was made without knowledge of the materials’ existence.
Master Short provided a comprehensive overview of the evolution of the law relating to social media production. Historically, the plaintiff’s right to privacy was balanced against the defendant’s right to all relevant information pertaining to the claim. In our justice system, the defendant is provided with full details of the claim to accurately to assess the scope of damages involved. This information dictates strategy leading up to trial, and promotes settlement opportunities. It is considered unfair to make a defendant pay damages where more accurate or complete information would reduce its exposure.
In the social media era, privacy has become a challenging topic. When a plaintiff has posted information about her life on various social media sites, can this information be called “private”? Even in a case where access is limited to “friends” of the plaintiff, the lines are blurred. For example, in two recent decisions, judges have claimed that:
- allowing 300+ users to access a private Facebook page demonstrates that the plaintiff had no real intention to protect her privacy; and
- denying access to the other billion users of the application demonstrates the exact opposite.
Generally, the current case law supports production of all social media materials that might be relevant to the issues in dispute. This does not automatically entitle a defendant to the contents of all social media sites. There must be some evidence that relevant materials exist before a judge will order production. Unfortunately, this holds true even in the case where a plaintiff’s public profile contains evidence indicating that her private materials might also be relevant.
In Isacov, the facts before Master Short, and specifically the discrepancy between the plaintiff’s reported limitations and the photos on her friend’s Instagram account, led him to order production of all social media materials as requested. He reasoned that, if the accounts did not actually exist, the order could not violate the privacy interests of the plaintiff; and if they did, the evidence warranted production in full so that the defendant could assess its exposure.
Master Short also commented that it was appropriate to place all relevant social media materials in the plaintiff’s Affidavit of Documents. Although this is not a binding comment, it indicates the extent to which the privacy rights of the plaintiff have been compromised in the social media era.
In keeping with this decision, plaintiffs must understand that their social media content will probably be provided to the defendant as a consequence of starting the lawsuit. This is not a problem provided that the plaintiff’s reported symptoms are consistent with the evidence contained on social media sites. In any event, simply blocking public access will not, by itself, deny the defendant and the Court access to the materials.
If you have questions concerning your Facebook, Instagram, Twitter or other accounts, or want to discuss other issues related to your lawsuit, please contact us for a free consultation. At Campisi LLP, our Personal Injury practice operates “Clients First, Excellence Always!” Put us to work for you.