During this time of physical distancing and staying at home to try to #FlattenTheCurve of Covid-19, many of us are spending more time on social media as a way to keep in touch with friends and family. (I am as guilty of this as you are!) If you are currently involved in a personal injury action, you should keep in mind that your social media accounts can be found to be relevant “documents”, and ordered to be produced for the litigation.
Social media accounts have been described as “a potential treasure trove of real evidence as to what a party is capable of doing, notwithstanding their injuries”1. The fact that you have a social media account does not mean that it will need to be produced to the defendant. The Court will consider the information from your profile that is accessible to the public, and if there is relevant information posted there (e.g. photographs, status updates), then it is reasonable for it to be assumed that there is also relevant information on your private profile.
Only information that is relevant, will be ordered to be produced. The Court retains a discretion to refuse to make you produce your social media content if the information is of little importance and may compromise other important interests, such as your privacy rights.
If the information that is displayed on your public profile is inconsistent with evidence that you have given in your personal injury action, the Court is likely to order the relevant portions of your private social media account to be produced to the defendant.
Of note, private messages sent through your social media are not producible. The Court has found them to be too much like personal letters that we once sent through the post.
How do you protect your personal information shared with friends and family through social media? Here are some tips to protect your privacy:
- Have the strictest privacy settings on your social media accounts. Your account should not be accessible to strangers, and nobody should be able to follow you without you first approving them.
- Do not approve people who are unfamiliar to you as friends, or allow them to follow you. One of them could be a private investigator.
- Do not allow people to tag you in posts or pictures without approving it first.
Social media is an important tool in helping us to stay connected to people, especially during times when circumstances force us to be apart. But it can also be an important tool used by the defendant in your personal injury litigation.
1Toth v City of Niagara Falls, 2017 ONSC 5670 (CanLII).