Social Media – The Do’s and Don’t’s

 by Peter Buxton, trial lawyer

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 If you have been involved in a motor vehicle collision that was not your fault, you may choose to make a claim through ICBC and eventually commence an action in Provincial or Supreme Court.

Likely one of the allegations that you will make in your claim will be that your injuries have altered your physical ability and affected your lifestyle and quality of life.  These claims will allow the other party in the lawsuit, perhaps represented by ICBC and their appointed lawyers, to look into all aspects of your life to defend or disprove your claims.

This includes any social media that you use regularly.  Increasingly evidence of on-line activity is being presented in evidence and considered by the Courts.

Many lawyers will advise you to withdraw completely from using social media and “get off the grid”.  This can be easier said than done.  You do not have to give up your on-line presence but there are some “Do’s” and “Don’t’s” that will protect you and help you to make a successful claim.

DO

  • Above all, when making your claim, always tell your caregivers, the ICBC adjusters, your lawyer, your friends, and all others the truth about the impact that the collision and your injuries have had upon your life.
  • Continue to go about your life as you did prior to the collision but understand that everything that ends up on-line may be reviewed by investigators acting for ICBC and the other party in your litigation.
  • Adjust all of the privacy settings on your individual programs to limit access to your data by unknown individuals that you do not approve in advance.  You can curate your programs to restrict access to them by unwanted individuals.  Information on how to do this is readily available in the programs themselves or through Google or YouTube.

DON’T

  • Lie, mislead, exaggerate or embellish the effect that your injuries have had upon your life or your past lifestyle.
  • Comment on line about your injuries, ICBC, the Court, your job or your claim. Remember, your life on line will become an open book in your claim and law suit.

The courts have approached the issue of the disclosure of social media posting with caution.  In Dosanhj v. Leblanc et al. Master Taylor found that

[30]         I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind.

[31]         The plaintiff has provided an affidavit in response to the defendant’s application, in which she has deposed that she uses both her laptop and her iPhone to communicate with her lawyer over email and, in the case of her iPhone, using text messages.

[32]         As well, the plaintiff has deposed to being upset with the prospect of producing her Facebook account, her Twitter account, her computer and iPhone to the defendant as she feels they are private.  She has also deposed that she opened a Facebook account around the time of her surgery in 2006, mostly to see what other people were doing and to keep in touch with friends or family with whom she had lost touch.  The plaintiff has also deposed that she closed her Facebook account approximately a year and a half ago.

[33]         I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me….

[37]         Surely if the material sought by the defendant from the social media sites on the plaintiff’s computer is an invasion of privacy, the application for metadata, in the context of the case at bar, would also be a serious invasion of the individual’s privacy.  In any event, in the context of this application I would choose to exercise my discretion not to grant the application for metadata associated with the plaintiff’s files related to her resumes and cover letters.

However, at trial in Tambosso v. Holmes, Justice Jenkins found as follows:

  • [170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.
  • [171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular.

CONCLUSION

Tell the truth, do not exaggerate and make sure your privacy settings on your social media accounts are properly adjusted.

If you would like a free initial consultation regarding this topic or any other aspect of your ICBC claim contact Peter Buxton at pbuxton@panlegal.ca or 604.372.4550.

Visit my website at https://panlegal.ca/peter-buxton-qc

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