Law Times

Law Times • January 9, 2012 FOCUS PAGE 11 Social media no friend to insurance litigants Companies actively looking for online evidence of plaintiffs' activities BY JUDY VAN RHIJN For Law Times A s technology advances, the ability of insurers to mine social media sites for information about how people live their lives is expand- ing dramatically. In light of its usefulness as a tool for risk as- sessment, fraud management, and evidence in litigation, the courts are facing the challenge of balancing relevance and the public interest against a reason- able expectation of privacy. Roger Foisy, a personal inju- ry lawyer in Mississauga, Ont., says that the use of social me- dia by the insurance industry is a relatively new phenomenon. "It has sparked up in the last two to three years. I personally believe it's part of the under- writing process now." Foisy has found that many people don't take the insurance application form too seriously. "Th ey may have slipped up in- advertently in some aspects of their lives. If there's a photo of you smoking a cigar on the golf course and you said in your appli- cation that you've never smoked or don't smoke, that's an easy way for the insurance company to produce information otherwise." Foisy is absolutely sure that insurers are mining social media after the claim as part of their investigation strategies. "Adjust- ers have led me to believe or ad- vised me outright that they have been following my client on so- cial media sites," he says, adding he's concerned that insurers can take the information they fi nd out of context. "One adjuster told me that they had learned through infor- mation linked to a social media site that my client was selling items on Kijiji. Th e adjuster therefore claimed that the cli- ent was running a business when he had said he was not. When I looked into it, he was just trying to survive, selling off his personal items because the insurer had cut his benefi ts. I believe insurance companies are looking and even bidding on some items to determine if the clients are actually selling." Foisy also sees the data being used in claims adjudication. "I advise clients right upfront that if they have a Twitter or Facebook account to expect that the insur- ance company will be searching to see if they can locate it. If they want to keep using it, they must be selective in what they are shar- ing with the general public." Foisy notes that access to the information has gone beyond what the insurance company has found. "If they get relevant an- swers at examinations on discov- ery that lead them to believe that your social life has not been cur- tailed in the manner that you say it has, they can place a motion before the court seeking an order that the insured person produce more than the profi le disclosed, Untitled-2 1 he says, adding that defence law- yers are having some success with those applications. "Courts will support insur- ance companies with an order to Facebook to release all informa- tion. Th ere's no hiding behind it." It's at this juncture that peo- ple bring up privacy arguments, usually to no avail. "If you en- ter into litigation, you end up opening up your life to scruti- ny," says Foisy. "Any document relating to any matter in an ac- tion that you possess or have possessed may be relevant." Jamie Macdonald, a litigation lawyer at Norton Rose Canada's Ottawa offi ce, has seen this very issue come up in the context of insurance defence work. "Th ere has been an arising interest in privacy issues in the last few years because of social media and technology law. Th ey seem to go hand in hand together, but the same rules apply to the use of Facebook as to any other evidence, namely relevance and proportionality." When Macdonald gets a new claim, the fi rst thing he does is search the Internet, and not just for social media. "Personal infor- mation is scattered far and wide. Everyone who has been in a marathon has their results posted on the Internet. If I get a cata- strophic impairment claim and six months later the claimant has completed a marathon in a better time than I would, I'll fi nd it." Macdonald doesn't see this accessibility as prejudicing the claimant. "Th is information would be disclosed during the discovery process anyway if you've asked the right ques- tions," he says. In fact, Macdonald has al- ways found the privacy debate in relation to social media to be "a bit curious." "In any action brought by the plaintiff , they will have to pro- duce doctors' notes, OHIP sum- maries, and prescription summa- ries — all inherently very private documents — but they balk at producing photos that they've sent online to 200 of their clos- est friends. I don't know if it's the novelty of Facebook. People didn't expect it to be relevant." Macdonald stresses that if an item is relevant in a non-Face- book format, it'll be relevant if it's on a social media site. "On a bad vacation claim, if the plaintiff has snapshots and a photo album at the house, you'd want them to produce it. In a loss of enjoy- ment of life, if you learned they had kept a detailed journal of their moods every day and social engagements, you'd want it pro- duced. If they kept it in an online medium, why is it any diff erent?" Foisy confi rms that in the last two years, clients have been asked if they're on any social me- dia site on every examination he has attended. "Th e insurance industry is particularly interested to see what type of photographs you're posting. If it's a vaca- tion injury, they might say you shouldn't be vacationing when you're injured or look happier than you're claiming to be. "My job is to advise clients ahead of time that the photo- graphs and information will become part of the litigation and that they should maintain as much privacy as possible. I don't specifi cally tell them to take it down because that would be wrong in law but I advise them that if they continue to use it, they must be very careful. For people involved in litiga- tion, I'm not sure social media is going to be your friend." www.lawtimesnews.com 11-10-11 8:44 AM

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