SOCIAL MEDIA IN PERSONAL INJURY CLAIMS AND LITIGATION

Social Media
In Canada, as across most of the world, people love their social media. According to the Social Media Lab at Ryerson University, in 2017, approximately 94% of online Canadians are on at least one social platform (1) and the Canadian Internet Registration Authority reports that approximately 61% percent of Canadian's engage on social media every single day. (2)

Almost as dramatic as the growth that social media has seen over recent years is the changing ways that the average Canadian interacts with their social media accounts. Gone are the days of using social media for only posting pictures of your dog and your dinner (...well almost gone). Social media has now become one of the primary providers and drivers of our societal values, news, and culture. With four out of five Canadians reporting that they're keeping up to date with current events through social media sites like Facebook, LinkedIn and Twitter. (3)

However, there is one major use of social media that most individuals are not aware of, the potential that your posts could be used against you in the litigation process.

The Internet Doesn't Forget...Even if You Did
Remember that time you went for a run and posted about your beating your best time? Or that beautifully refreshing hike in the mountains after you heard from your personal injury lawyer that your claim was ready to be filed? You might not remember...but the internet does, and you can be certain that the insurance company defending the at-fault party in your claim does as well.

The details that you share online about your vacations, families and your everyday life can all be used by the other side to help provide proof of a narrative which may not be accurate and which can negatively impact your claim. Social media and electronic documents being admitted as evidence is becoming commonplace in litigation with this evidence most commonly being called upon at questioning and for their admission at trial.

Canadian courts have made it clear over the last several years that social media accounts are considered documents that must be produced if they contain relevant and material information. In personal injury actions, these social activities that are posted online can speak directly to your claim for your loss of enjoyment of life or ability to work, and these seemingly harmless photographs could have the ability to limit your recovery and severely impact your case.

“But the Post was Private!”: The Oxymoron of a "Private" Social Media Account
In a case called Leduc v. Roman, the Ontario Superior Court of Justice made an order permitting the defendant to cross-examine a plaintiff in a motor vehicle accident suit regarding the contents of his private Facebook account. The court reasoned that a private social media profile setting would not shield the social media account user from the requirement to provide all relevant disclosure even if that content was posted to a private account.

This precedent-setting decision implies that in a world of interconnectedness there is no such thing as a "private" social media account. As we live in a culture where over-sharing, and even exaggerating, is prevalent on social media platforms, it is important that each individual think carefully before posting something online. Even the most innocent-seeming pictures or posts can compromise a fair resolution to a personal injury claim.

When You Are Under a Microscope Trust Our Experience
Personal injury litigation can be extremely difficult for even the most resilient people. Between all the medical appointments, and trying to get back to your pre-accident way of life, we understand just how challenging this entire process can be.

1. The State of Social Media in Canada 2017: A New Report, online: https://socialmedialab.ca/2018/02/25/state-of-social-media-in-canada/
2. Canada's Internet Factbook, Canadian Internet Registration Authority, online: https://www.cira.ca/resources/corporate/factbook/canadas-internet-factbook-2019
3. Canada's Internet Factbook, Canadian Internet Registration Authority, online: https://www.cira.ca/resources/corporate/factbook/canadas-internet-factbook-2019

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*** Please note that this article is only to provide general information. It cannot be considered legal advice. If you have any questions or concerns, please contact Braithwaite Boyle at 1-800-661-4902 and one of our lawyers would happy to assist you ***