Thursday, 7 June 2012

Ian Aikenhead says, public beware: ‘Private’ social media information is being used more and more by British Columbia courts as evidence.

Ian Aikenhead and the legal team at Aikenhead Moscovich & Jones want to remind their clients and the public that information on social media i.e. Facebook Twitter etc. can be used against them in legal proceedings. What one thinks is private may not be; the court can order transcripts, records of postings, conversations, and photos from one’s private profile or page. In the recently released British Columbia Supreme Court case of Fric v. Gershman [2012] B.C.J. No. 821, the court examined an application for the plaintiff`s entire Facebook profile by the defendant. While deciding the defendant`s application, the court canvassed and discussed the current Canadian jurisprudence around social media.

The plaintiff, Ms. Fric, is a recent law graduate from the University of Victoria; she is claiming damages from injuries suffered in a motor vehicle accident in 2008, when she was a first year law student. The pleadings alleged that Ms. Fric has suffered loss and damage, including pain and suffering, loss of the amenities of life, past and future loss of earning capacity and opportunity and past loss of income, loss of educational advancement, past and future loss of domestic maintenance capacity, and loss of mobility.

In December 2008, Ms. Fric participated in a social and sports tournament with her law school colleagues called Law Games.  Among other things, the defendant wanted access to any material and photographs on Ms. Fric’s Facebook page relating to the law games. The plaintiff’s Facebook page shares only some information publicly; the public information does not include any photographs or other content. However, Ms. Fric has 890 Facebook ‘friends” who have access to most of the private content of the page including 759 digital photographs. The defendant’s position is that the Facebook profile and various photographs are relevant to the plaintiff's claim of both ongoing physical impairment and also the plea of loss of amenities of life.

The defendant sought an order including:

The Plaintiff to produce and deliver to the solicitor for the Defendants a complete copy of the Plaintiffs Facebook profile website, including all photographs and information relating to those photographs such as the dates on which each photograph was added and all comments related to the photographs, posted from November 18, 2008 to the present time, within 14 days of the date of this order;

If granted as requested, the order would have given the defendant a complete record of all Ms. Fric’s private information, photos, comments and private messages dating back almost four years. The application also sought ‘metadata’ from the Facebook page. Metadata or ‘data about data’ can describe the contents and context of data files i.e. the date they were published, even if said information does not appear on the website or Facebook page itself.

The court referenced Ronald Podolny work, in When “Friends” Become Adversaries: Litigation in the Age of Facebook, published in the Manitoba Law Journal. In the article, he surveys the existing case law on the admissibility of Facebook evidence and the distinction between evidence found on the ‘public’ versus ‘private’ elements of a user’s profile.  In his discussion he stated:

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...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."

After reviewing recent case law, the court concluded that some of the Plaintiff’s photographs on the private Facebook profile should be disclosed. The court noted that Ms. Fric has testified on examination for discovery that the injuries have negatively impacted her social life and ability to perform certain sports or recreational activities; consequently, the court reasoned that photographs which “show the plaintiff engaging in a sporting or physical recreational activity -- from hiking to scuba diving to curling to dancing -- are relevant in discovering the plaintiff's physical capacity since the accident.” That being said, the court felt the application sought by the defendant was too broad and amounted to a “search of the filing cabinet.”  As a result, the court ordered the plaintiff produce the photographs in her possession in which she is featured:
 1. participating in the December 2008 Law Games; and
 2. on a vacation taken since November 18, 2008.
The Plaintiff was not ordered to include any commentary from the Facebook page even as they relate to the photos as “the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties”.
Aikenhead Moscovich & Jones is a full service East Vancouver law firm. Our lawyers act on behalf of clients in a wide range of legal matters. Ian Aikenhead and the dedicated lawyers at the firm can assist you with your ICBC claims. It is crucial that you have excellent counsel right from the beginning for your injury claim. We can explain your legal obligations and privacy rights. At Aikenhead Moscovich & Jones, we have lawyers that are highly dedicated to getting you full compensation for an injury claim. Before having any contact with ICBC, we strongly recommend you consult us. If you have any questions regarding privacy rights, an injury claim or anything else, please call us at 604-253-4525 to book an appointment.

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