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Introduction

Hiring private investigators to monitor plaintiffs in their daily lives is a common practice for defence lawyers and insurance companies, in order to find out if the plaintiff has lied about or exaggerated his or her injuries. In recent years, they have begun to regularly search social media pages for this information. These sites are popular and used by the majority of plaintiffs, they are updated regularly, and conducting an online search is much cheaper than paying a private investigator for days of surveillance. If you have suffered an injury and are in a lawsuit, you should be cautious about any Facebook friend requests from people you do not know. They may be defence lawyers or insurance companies trying to conduct an investigation into your Facebook account.

What are investigators looking for?

Investigators mainly look for pictures of plaintiffs engaging in physical activities, which may show that the plaintiff has exaggerated the injury. These could include pictures of the plaintiff hiking, dancing, or participating in sports. In cases where the plaintiff is claiming a loss of enjoyment of life following an injury, pictures from vacations and parties may be relevant. In one recent case from British Columbia, an insurance company submitted photos taken of the plaintiff during a trip to Las Vegas. They argued that the accident no longer impacted the plaintiff’s daily life, and they used the vacation photos to support this argument. The judge allowed the photos but held that they were “of limited usefulness,” since the plaintiff was seeking compensation for “what she has lost, not what she can still do.”1 However, photos on Facebook and Twitter still have the potential to undermine a plaintiff’s credibility.

Will increased privacy settings keep my information private?

Increased privacy settings may not keep your information private. Defence lawyers and insurance companies are now seeking court orders to gain access to plaintiffs’ Facebook, Twitter and other social media pages. In a recent Ontario case, the court ordered the preservation of the plaintiff’s entire Facebook profile wall and postings, regardless of whether they were private or public. Any parts of the profile and posts that were relevant to the case were to be produced in court.2 Even if a plaintiff implements increased privacy settings on Facebook, the court can infer that relevant documents exist in the profile and order their preservation and production.

What should I do to protect my information?

Overall, Canadian courts are still working out how to handle online social media in litigation, but they highly respect the protection of a plaintiff’s privacy. They often refuse to order the production of personal social media pages, because the privacy interests of plaintiffs outweigh the value of the potential information social media could provide.
However, you should still consider what your posts, comments and pictures may broadcast about your life.

1. Don’t confirm any Facebook friend requests from people you don’t recognize.
2. Don’t post anything about your case or details about your injury.
3. Untag yourself from any of your friends’ pictures taken after your injury that may undermine your case, especially pictures of you participating in sports or physical activities.
4. If you want to share vacation photos with friends but are worried about the impact they may have in court, consider using an online file storage and sharing site like Dropbox or Box.net.
5. Before writing any status update, comment or tweet, think about what message it conveys about your life.

Jim Mays is has been a partner with Siskinds since 1992 and has been voted by his peers to be included in the Best Lawyers in Canada.  He can be reached at 519-660-7856 or by email at jim.mays@siskinds.com.

1 Guthrie v Narayan (2012), BCSC 734
2 Anderson v. 45859 Ontario Ltd. (2010), ONSC 6585.

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