Possible Social Media Evidence Leads To A Different Type Of “Friend Request”

Social media has had a profound impact on the way people communicate with one another. It is also having an impact on how evidence is presented in trials. While something said privately between people may have been difficult to discover prior to social media, online communication, specifically information shared openly on social media platforms, can often live forever, available for the world to see. In a recent case before the Ontario Superior Court of Justice, the court was asked to determine whether a defendant could have access to three years’ worth of social media content from the plaintiff.

A last minute request

The plaintiff was involved in a motor vehicle accident which caused her various injuries when a vehicle ran over her left foot. She issued a statement of claim seeking general damages of $1,000,000 and special damages in the amount of $2,000,000.

While awaiting trial, the defendant’s counsel obtained a private investigator’s report looking into the plaintiff’s mobility in respect to the alleged injuries. The report contained screen captures from the plaintiff’s friend’s Instagram account which appeared to show the plaintiff dancing in high heel shoes, raising questions about the seriousness of her injuries.

In light of this evidence, the defendant asked the court to require the plaintiff to provide all of her social media content on the Internet for a period of three years (the date of the accident to the date of the trial). The plaintiff asked the could to deny the motion, refusing to admit whether she had any specific social media accounts.

The court’s analysis

The court’s decision started with a quote from a 2012 decision, stating,

Before the dawn of the Internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, it is unimaginable that a defendant 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-pecuniary damages. The shocking intrusiveness of such a request is obvious. The defendants’ demand for disclosure of the entire contents of the plaintiff’s Facebook account is the digital equivalent of doing so.”

In its analysis, the court found it important to ask whether the invasion of privacy faced by the plaintiff is necessary in order to obtain the proper administration of justice. In balancing these interest, the court found agreed with another decision from 2018 where the judge wrote,

“Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found ( depictions which, on their face, appear to be at odds with the plaintiffs allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant. Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life; and photographs taken before are relevant for comparison.”

In following this reasoning, the court ordered the defendant to provide all photographs posted to her Facebook and Instagram accounts from the date of the accident up to the date of the trial.

You should speak to an experienced personal injury lawyer in order to determine if you may be entitled to damages stemming from a motor vehicle accident. The outstanding personal injury lawyers at Derfel Injury Law work to get our clients every penny they deserve. Please call us at 416.847.3580 or reach us online to see how we can help you today.