It is common knowledge that the internet and, more specifically, social media has changed the way individuals communicate and interact with one another.

Social media is defined as types of electronic communication through which users form online communities to deliver information, ideas, personal messages, and other content. In Canada, the most popular social media networks include Facebook, YouTube, Twitter, Pinterest, Instagram, LinkedIn and Snapchat.

Approximately 22.7 million Canadians had a social media account by the end of 2017 and this number has grown by 300,000 annually for the past two years.

When information is posted online to a social media website, the information customarily becomes the property of the website or app. Once posted, the information online may be shared or released to a third party by the social media website. Therefore, information posted online is not protected by guarantees of privacy or solicitor-client privilege.

In terms of personal injury lawsuits, social media websites are often subject to scrutiny by insurance companies or defence counsel to obtain useful evidence to put the plaintiff’s (the individual bringing a lawsuit against another) credibility into question.

DISCLOSURE OBLIGATIONS IN PERSONAL INJURY LAWSUITS

According to the Alberta Rules of Court, litigants must disclose documents relevant to the material issues in a lawsuit. This obligation includes disclosing portions of their social media profiles in their Affidavits of Records (a sworn list of all documents that are material and relevant to the lawsuit that are or have been under the litigant’s control).

It is indisputable that a plaintiff in a lawsuit has an obligation to disclose and produce relevant photographs, videos and documents found on any social media accounts. Evidence gathered from social media accounts by way of the discovery process (disclosure of documents and oral questioning) can substantially strengthen the positions of litigating parties.

In Canada, social media accounts are, for the most part, considered by the courts to be documents that must be produced if they contain relevant and material information pertinent to the issues in the lawsuit. For example, photographs of a claimant engaged in recreational activities are often admitted as evidence relevant to demonstrating the claimant’s “enjoyment of life” or ability to work.

WHAT TYPES OF SOCIAL MEDIA POSTS CAN AFFECT A PERSONAL INJURY CLAIM?

Evidence compiled from social media accounts can affect a litigant’s position during a lawsuit.

For example, in the case of Kourtesis v. Joris, Ms. Kourtesis was seeking damages for pain and suffering and loss of enjoyment of life following a rear-end collision. The defence found photographic evidence taken following the accident on Kourtesis’ Facebook account that showed her being lifted in the air by her brother and celebrating at a party. The judge found that the photographs demonstrated an active social life. Based partially upon this evidence, the judge ruled that Kourtesis was not entitled to the compensation claimed for damages as she failed to prove that her impairment interfered with her ability to perform her usual activities and to enjoy life.

Here are some examples of the types of social media posts the opposing party may be looking for, most often, to undermine a plaintiff’s credibility:

• Photographs or videos demonstrating a plaintiff engaged in physical activity that can be used to disprove the extent or nature of the injuries claimed;
• Comments made on social media sites relating to a sore neck or back or previous injury that can be used to undermine an individual’s lawsuit;
• Social media posts that unintentionally admit liability or cast doubt as to whether the plaintiff is partially to blame for the accident in question;
• Internet tracking apps that can discredit the claimant’s version of events leading up to the accident and the precise time the accident occurred.

ADVICE FOR PERSONAL INJURY CLIENTS

Although the law continues to evolve, it is quite clear that information disseminated on social media may impact a personal injury clients’ case. Here are a few simple pieces of advice to follow if you have sustained a personal injury and are contemplating litigation:

1. Refrain from using social media entirely until the completion of your lawsuit;
2. Do not delete social media accounts or any information posted prior to retaining a lawyer;
3. Set your privacy settings to the highest levels to allow only your “friends” to see your personal information;
4. Request that family and friends refrain from “tagging” you in photos or mentioning you in comments until the completion of your lawsuit;
5. “Untag” yourself from any pictures on social media that were taken after the your injury that forms the basis of your lawsuit;
6. Consider using alternative methods of sharing photographs with friends other than social media websites;
7. Do not accept any “friend” requests from individuals you do not know on Facebook or other social media platforms;
8. Do not post any information regarding your lawsuit or any discussions you have had with your lawyer on any social media websites;
9. Carefully consider whether you want the information revealed in a courtroom before posting any status updates, comments or photos.

At Cuming & Gillespie LLP, we represent individuals who suffer from all types of serious personal injuries. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.