More and more Ontarians are living their lives online.
Facebook status updates and photos cover the gamut of topics from pending nuptiuals, the birth of a child to ‘what I had for dinner tonight’. A Facebook page is essentially a snapshot into the life of the user; which is exactly why defence counsel in a personal injury action wants access to it if that user is the Plaintiff in a personal injury action.
But isn’t that an invasion of privacy you ask? It may seem so, but the reality of litigation is that once you start a lawsuit seeking ‘pain and suffering’ damages there is very little that actually remains ‘private’.
Ontario Courts have made it clear that material contained in a Facebook profile is properly producible in a personal injury action where the Plaintiff alleges damages for loss of enjoyment of life. (See for example Leduc v. Roman 2009 CanLii 6838 ONSC) ] It is not difficult to understand why the Court takes this position as a Facebook profile is chockfull of relevant information on how a person lives their life on a day to day basis.
With that in mind, we offer some tips on the use of social media (ie: Facebook, Twitter, Linkedin, Four Square etc.) for the plaintiff in a personal injury lawsuit:
- We recommend that you do not use social media until your lawsuit is completed.
- If you have existing social media accounts, please preserve which ever information is on the site at present.
- If you choose to use social media you do so at your own risk, but you can take the following precautions:
- Do not post any photos of you online from this point on.
- Do not discuss any of your day to day activities or whereabouts online.
- Do not discuss your lawsuit online.
- Do not discuss your injures or the details of your accident online.
- Do not discuss the details of any subsequent accidents, injuries or illnesses online.
- If you are online “friends” with the Defendant in your case (or anyone connected to the Defendant) block them from accessing your page.
- Review your privacy settings to ensure that your information is only visible to your close friends.
- Advise your friends and family not to “tag” you or post any photos of you.
- Limit your “friends” to people you actually associate with on a day to day basis. It is extremely difficult to argue that you intended to keep your online information “private” if you are “friends” with an indiscriminate amount of people.
Remember that If you choose to use social media, please be aware that anything you post can be accessible to defendant’s counsel - keep this in mind and post wisely.