Law Times

Page 12 June 11, 2018 • Law Times www.lawtimesnews.com 'You need to be aware it's out there' Defendant granted access to Facebook pictures BY MICHAEL MCKIERNAN For Law Times T he zone of privacy for plaintiffs in litigation continues to shrink after a defendant was granted access to an injured par- ty's private Facebook pictures, according to a London, Ont. personal injury lawyer. Maia Bent, a partner in the personal injury practice group at Lerners LLP, says the recent decision in Papamichalopoulos v. Greenwood was just the latest in a string of judgments in which injured plaintiffs have been or- dered to turn over material de- spite the fact it was posted to so- cial media behind privacy walls. "It seems to me that the zone of privacy is getting smaller," says Bent, a former president of the Ontario Trial Lawyers As- sociation. "Cases sometimes go in different directions, but there is definitely a trend toward pro- duction of private social media material, especially if there is some additional evidence that is not within the privacy zone." According to the April 30 ruling by Master Linda Abrams of the Ontario Superior Court of Justice, the plaintiff made a $1.6-million claim for past and future income loss suffered as a result of his injury after claiming it prevented him from continu- ing in his six-figure-salary man- agement job. He also said that the injuries were permanent and continued to cause him grief, including stiffness, balance issues and sig- nificant pain that had "irretriev- ably lessened" his quality of life. However, the decision says an investigator hired by the de- fendant in the case was able to find publicly available Facebook pictures of the plaintiff riding a Jet Ski, bending over while lift- ing his wife, driving and lifting his two-year-old child, none of which demonstrated any signs of discomfort. "These photographs depict a physically strong and active plaintiff and, as such, are rel- evant and open up line(s) of inquiry," Abrams wrote, grant- ing the defendant's motion for production of further material available only to the plaintiff 's friends. In doing so, she quoted from the 2009 decision case by then- Superior Court Justice David Brown in Leduc v. Roman. "Where, in addition to a pub- licly-accessible profile, a party maintains a private Facebook profile . . . it is reasonable to in- fer from the presence of content on the party's public profile that similar content likely exists on the private profile. A court then can order the production of rel- evant postings on the private profile," Brown wrote. "Essentially, if the plaintiff has left a trail of bread crumbs, the defendant will be allowed to follow it behind the closed door," Bent says. "Plaintiffs are unlikely to be able to assert privacy in situations where they them- selves are putting evidence out there, so they will have to be very cautious about what they post. They can't pick and choose what evidence they make public and which they don't. "We don't tell clients to stop using these sites if they enjoy them but just to be aware of the possible consequences," she adds. Stephen Birman, a partner at Toronto personal injury law firm Thomson Rogers, says a social media discussion features in some of his earliest meetings with clients. "It's a virtual certainty that the defence lawyer will ask about social media postings at discov- ery, so right from the outset, I think the proper way to go about things is to have a talk with the client about what they post and the likelihood that it will one day get into the hands of the insurer or the defence side," he says. "For the defence, it's like free surveillance," says Charles Gluckstein of Gluckstein Per- sonal Injury Lawyers in To- ronto, who tells his clients to keep in mind the possibility that any pictures they post may be shared. "To tell the truth, very few heed the warning," he says. "Peo- ple are the way they are, and they want to continue living their lives the way they did before the accident. "Five or 10 years ago, people were more likely to be shocked by the idea that their photos would be shared, and maybe they will still find it an intru- sion if they're over 40 years old, but the younger they are, the less they care. The younger genera- tion don't think of privacy in the same way," Gluckstein adds. Like more traditional forms of surveillance employed by insurers, Birman says, private social media posts don't neces- sarily have to cause problems for plaintiffs. "You need to be aware it's out there and be prepared to answer questions at discovery," he says. "But you won't have difficulties if you're honest and forthright." Still, Bent says, the nature of social media postings can cause issues for clients when the op- posing side gets its hands on them or if they are admitted as evidence at a trial. "Nobody is posting shots that don't depict an ideal image. The pictures that go up are the ones where you look your best and when you're engaging in active, healthy, social activities," she says. "The danger is not so much that you post pictures of your- self doing something you claim you can't do; it's more that you only post on the positive side of PERSONAL INJURY LAW Untitled-2 1 2018-06-04 3:42 PM Charles Gluckstein tells his clients to keep in mind the possibility that any pictures they post on social media may be shared. See Privacy, page 13

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