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The Impact of Social Media on a Personal Injury Claim

Having now been involved in our new website, as well as the associated Facebook page and Twitter account, I have been reminded of the potential for social media to negatively impact a plaintiff's personal injury action.

Based on our past experiences, it is not uncommon for defendants in personal injury actions to retain private investigators to conduct surveillance on an injured plaintiff. The reasons why a defendant might take such a step are varied - perhaps the plaintiff is claiming that he or she is unable to work and the defendant is hoping to obtain video surveillance of the person working.

More often than not, however, the defendant is hoping to find evidence that the plaintiff has over-stated the seriousness of his or her injuries and/or undertaken activities which are inconsistent with the type(s) of injuries alleged to have been sustained by the person.

For example, photos of a person with a serious physical injury participating in a physical activity such as skiing. If a defendant is able to produce such evidence, it has the potential to undermine the plaintiff's credibility in the litigation, which in turn impacts one's ability to settle a case on favourable terms or succeed in trial.

In recent years, we have frequently had defence counsel rely on photographs and information posted by our clients on social media websites, particularly Facebook and Twitter, to suggest our clients have over-stated the extent of his or her injuries.

It is also becoming more common for defendants in personal injury litigation to apply to the court for access to a plaintiff's Facebook photographs and postings. In a recent British Columbia Supreme Court decision, Fric v. Gershman, the court discussed a number of such applications (borrowing from an article written by R. Podonly, titled When "Friends" Become Adversaries: Litigation in the Age of Facebook, (2009) 33(2) Man. L.J. 391-407):

[44]        After surveying some of the conflicting results on the issue, Mr. Podolny concludes:

20 It appears, then, that it is "beyond controversy" that a person's Facebook profile may contain materials relevant to a legal action and which may need to be disclosed to satisfy discovery obligations. Undisputedly, however, courts may not provide relief by ordering the provision of a
 Facebook password from one party to another; rather, courts may only order disclosure of Facebook content and metadata associated with a Facebook profile. The disagreements between courts centre on the access to the "private" portion of a Facebook profile. The better view is that
 a plaintiff seeking disclosure of documents posted on the "private" portion of a user's profile must adduce some evidence (based on the "public" portion or examination for discovery) which would lead a court to believe that the "private" portion contains documents which are relevant to the action. Fishing expeditions will not be allowed, but a defendant may not hide from disclosure by restricting access to information he or she posts on the web to a select group of "friends."

Each case, of course, turns on its own facts. In Fric, the court ordered production of a selection of Ms. Fric's Facebook photographs, including some that were not publicly available.

From our perspective, we believe that it is prudent for our clients to have a cautious approach with their social media accounts during the course of their litigation. Arguments can be made that information on an individual's Facebook page is of only limited usefulness in terms of assessing a person's entitlement to personal injury damages - as they are seeking compensation "for what she has lost, not what she can still do" (see Guthrie v. Narayan, 2012 BCSC 734 as an example where such reasoning was applied). However, it is still best practice for an injured person to take a conservative approach with their social media accounts and to be aware that information posted on the web may be producible to the defendant in the litigation.

If you have any questions about the potential impact of social media on your particular claim, do not hesitate to contact one of our lawyers. 

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