Law Times

Law Times • February 12, 2018 Page 11 www.lawtimesnews.com Competing interests emerge over online information Social media posts not always part of litigation BY SHANNON KARI For Law Times P hotos and other infor- mation on a protected portion of an individu- al's Facebook page in- voke privacy interests and will not necessarily be produced to the defence in personal injury litigation, an Ontario Superior Court judge ruled last month. The judgment in Jones v. I.F. Propco issued by Justice Lynne Leitch last month is one of the most recent examples of trial courts being asked to decide between competing interests over information that has been posted on social media. "The conclusion that users have a privacy interest in the private portions of their Face- book accounts is more persua- sive than the conclusion that they do not because they shared the account with a number of their Facebook 'friends.' Users have the option of keeping their Facebook accounts entirely public. The plaintiff in this case did not," the judge wrote. The defendants in Jones were seeking Facebook posts and comments from the plaintiff from five years before the 2014 incident until the present. The plaintiff produced infor- mation from the public portion of her Facebook page dating back to 2012. Leitch rejected the defence request, ultimately, on the basis of a lack of relevance. "On this motion I have con- cluded that there is no evidence that the posts are relevant be- cause the activities depicted in the photographs are not rel- evant to the extent of the plain- tiff 's physical limitations since the accident," said the ruling. The decision is significant, however, says lawyer Maia Bent, because it suggests that permit- ting several users to access the private section of your Facebook account does not necessarily mean you are giving up privacy rights over that information. "This is an area that is still not settled law," says Bent, a partner at Lerners LLP in Lon- don, Ont., who is not involved in the Jones case. "A number of cases seem to be going to broader disclosure of social media postings as courts look at probative value versus privacy interests," she notes. Colleen Burn, partner at Burn Tucker Lachaine LLP in Ottawa, agrees that there is not a consensus on the scope of social media information that should normally be produced. "It is still a minefield that judges are grappling with," says Burn. One of the factors in this analysis is the privacy setting of the individual on their social media, says Bent. In her ruling last month, Leitch cited with approval the analysis in a previous ruling by Superior Court Justice Thomas Heeney in Stewart v. Kemp- ster, that a general request for all information on the private portion of a Facebook user's ac- count is not acceptable. "It is unimaginable that a de- fendant would have demanded that a plaintiff disclose copies of all personal letters written since the accident, in the hope that there might be some information contained therein relevant to the plaintiff 's claim for non-pecuni- ary damages," wrote Heaney. "The defendants' demand for disclosure of the entire contents of the plaintiff 's Facebook ac- count is the digital equivalent of doing so," he stated. At the same time, there can be a "fallibility" in putting too much emphasis on a user's pri- vacy settings when deciding whether social media informa- tion should be produced to the defence, says Bent. "More and more older people are on social media. They may be unfamiliar with these fea- tures," she notes. Where there is consensus on the plaintiff side of the personal injury field is that clients need to be informed about the dangers of social media posts during the course of litigation and also to restrict access to the general public. "We advise clients at the out- set in the same way we might speak about surveillance," says Bent. While the private portions of social media accounts may not necessarily be required to be produced to the defence, that is not a certainty, says Burn. "The higher the number [of people with access], the harder the argument that this is per- sonal. Make sure you know who is asking to be your friend. We FOCUS Colleen Burn says there is not a consensus on the scope of social media information that should normally be produced in per- sonal injury litigation. See Not, page 12 In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-3 1 2018-02-08 2:41 PM

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