Social media can play a significant role in personal injury litigation. Photos, videos, comments, location check-ins, and other online activity may become evidence in a lawsuit. In Ontario, the law recognizes the relevance of social media content in personal injury cases. This means a plaintiff may be required to provide to the defendant any posts, photos, or other information on their social media accounts that may be relevant to the case, such as details about their physical or mental condition, activities, or lifestyle. However, Ontario courts have also made it clear that defendants are not automatically entitled to unrestricted access to a person’s entire digital life. Privacy rights still matter.
Why social media matters in personal injury claims
Insurance companies and defence lawyers routinely review publicly available social media content during personal injury litigation. Posts that appear inconsistent with a person’s claimed injuries may be used to challenge credibility, dispute the severity of injuries, or argue that an individual’s day-to-day functioning is less impacted than alleged. Even seemingly harmless content can be misunderstood when viewed without context. Courts recognize this reality.
Social media disclosure in Mohamud v. Juskey
Recently, the court dealt with the issue of media disclosure in Mohamud v. Juskey, 2023 ONSC 4414. The case set parameters for the extent to which plaintiffs’ social media accounts are required to be shared with defendants.
The facts of the case were that the plaintiff, Ms. Mohamud, was involved in a motor vehicle accident. She claimed damages for injuries she suffered. During the litigation process, the defendant, Mr. Juskey, sought disclosure of the entire contents of Ms. Mohamud’s Facebook and Instagram accounts. Ms. Mohamud refused to make this disclosure.
Plaintiff’s argument
Ms. Mohamud argued that her social media accounts contained private and personal information unrelated to the motor vehicle accident, and therefore she should not be required to disclose them. She stated that such a request constituted an unreasonable intrusion on her personal privacy and had no connection to her injuries.
Defendant’s argument
The defence position reflected a broader trend in personal injury litigation where defendants may seek evidence showing the plaintiff engaging in activities that appear inconsistent with those claims. Mr. Juskey argued that there was good reason to believe that the photographs on Ms. Mohamud’s social media accounts would give insight into Ms. Mohamud’s lifestyle and activities, and therefore the accounts were relevant in assessing the extent of Ms. Mohamud’s injuries and their impact on her daily life.
The court’s decision
After a review of the portions of Ms. Mohamud’s Facebook and Instagram accounts that were available to the public, the court agreed that it was likely her private Instagram and Facebook accounts included post-accident photographs of Ms. Mohamud that depict her ability to engage in a variety of activities and were therefore relevant to the litigation.
Despite that relevance, the court agreed that a blanket request for access to all social media content would be overly invasive and infringe on privacy rights.
Having not seen the photographs on Ms. Mohamud’s private social media accounts, the court held that it could not decide which photos were relevant. Ms. Mohamud was ordered to produce a complete list of the photographs in her possession, control, or power – including those on her social media accounts – that were relevant to the live issues in the proceeding. She was not required to produce the entirety of her social media accounts. This decision reinforced that disclosure requests must be targeted, proportionate, and connected to the actual issues in dispute.
What this means for personal injury plaintiffs in Ontario
The decision in Mohamud v. Juskey demonstrates how information shared on social media can have implications in personal injury legal proceedings. However, this does not necessarily mean that the plaintiff has to share the entire contents of their social media account. The defendant must provide a compelling argument as to why the content they’re requesting is directly related to the case. Mere speculation or fishing expeditions are not sufficient grounds for requesting social media disclosure. The defendant should narrow their requests to specific timeframes and keywords that are directly related to the case.
Tips for managing social media during a personal injury claim
If you are involved in a personal injury lawsuit, it is important to think carefully about your online activity throughout the litigation process. Consider the following practical steps:
- avoid discussing your case online;
- review your privacy settings;
- be mindful of photographs and videos shared by you, friends, and family;
- do not delete existing content without legal advice; and
- speak with your lawyer before providing records.
How Siskinds can help
If you are undergoing a personal injury lawsuit, consulting with a lawyer about what you are required to disclose is critical. You should not be required to reveal aspects of your life that aren’t relevant to the litigation. At Siskinds LLP, our personal injury lawyers help clients understand their disclosure obligations while protecting against overly broad or unnecessary requests for private information.
If you have questions about the information contained within this article or any other personal injury questions, please write to me, Lauren Cullen, at [email protected] or call 519-660-7826.