A recent decision by the British Columbia Supreme Court has led
to yet another case of "Facebook Remorse" for a Plaintiff
with an active social media presence.
The case also further confirms the trend in Canadian civil
courts to require disclosure of "private" social media
postings where relevant to the case at hand.
In Fric v. Gersham the
Plaintiff, who is a recent law school graduate, is claiming damages
resulting from injuries suffered in a motor vehicle collision that
occurred in 2008. The action, which is scheduled to proceed to
trial in May, 2013, involves claims by the Plaintiff of loss and
damages, including pain and suffering, loss of amenities of life,
past and future loss of earning capacity, and other damages alleged
to have been caused by the Defendants, who were involved in the
motor vehicle accident with the Plaintiff.
The Defendants in the case brought an application for an order
requiring the Plaintiff to produce a copy of the Plaintiff's
Facebook page, including a number of photographs which allegedly
show the Plaintiff on vacation, hiking, scuba diving, wakeboarding
and participating in the Law Games, a social and sports event held
annually for students enrolled in law schools across Canada.
The Defendants submitted that the photographs are relevant to
the Plaintiff's claim for ongoing physical impairment and loss
of amenities of life, and might contradict the Plaintiff's
claim that she has suffered from ongoing physical injury and loss
of amenities of life as a result of the accident.
In opposing the application, the Plaintiff claimed that the
Defendant's request was overly broad and not substantiated by
the evidence. The Plaintiff noted that she was not totally disabled
by the accident, and has continued to function at school, work and
socially, albeit with pain and fatigue. She argued that the
photographs would not help refute her claim, as they reveal only
snapshots in time and without a proper context. Finally, she argued
that her right to privacy outweighed the probative value of the
information sought to be disclosed.
Master Bouck, who presided over the Defendants' pre-trial
application for disclosure of the photographs and metadata,
considered two issues in her ruling: (i) whether the Facebook
photographs and metadata might be material and relevant to the
Plaintiff's claim; and (ii) whether the Plaintiff's right
to privacy might override disclosure obligations to the
Citing a number of prior cases in BC and Ontario, Master Bouck
paid particular attention to the issue of "physical
impairment" and found that when such impairment is being
alleged, in distinction to cognitive impairment, "the
relevancy of photographs showing the plaintiff engaged in
activities that require some physical effort seems rather
Master Bouck concluded that since the Plaintiff claims that her
diminished capacity was the result of physical injuries, her
Facebook photograph, which show her engaging in a variety of
sporting or physical recreational activities, and related metadata
(including time, date and caption information) are relevant in
discovering the extent of her damages since the accident, including
claims of physical impairment and social withdrawal. Accordingly,
he required this material to be included in an amended list of
documents accessible to the Defendants.
Although some of the material was found to be relevant to the
case at hand, Master Bouck attempted to balance the privacy
concerns of the Plaintiff and her Facebook friends with the
interests of the Defendants by limiting disclosure to the most
relevant material and allowing for the protection of other private
postings and the postings of third parties.
In this regard, Master Bouck narrowed the required disclosure of
the Plaintiff's huge photo collection, including those posted
on Facebook, to only those relating to the Law Games held and
vacations taken after the accident giving rise to the claim. She
also declined to order the Plaintiff disclose any comments posted
on her Facebook site, finding that the probative value of such
commentary was outweighed by the competing interest of protecting
the private thoughts of the Plaintiff and third parties. Finally,
she allowed the photographs to be edited in order to protect other
individuals who may appear in them.
It is worth noting that the photographs and metadata were
ordered to be disclosed only as part of the pre-trial discovery
process. The Plaintiff will still be entitled to argue that the
disclosed material should be inadmissible at trial on the basis
that the prejudicial effect outweighs the probative value.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The CRTC staff have recently held an informal consultation with industry and consumer groups following the October 2012 release of CRTC’s guidelines regarding the interpretation of its CASL regulations.
If passed, Bill C-290 would repeal paragraph 207(4)(b) of the Criminal Code and make it lawful for the government of a province, or a person or entity licensed by a province, to conduct and manage a lottery scheme that involves betting on a single sport event or athletic contest.
A discussion on protecting your brand reputation in the Internet age, compliance issues relating to national retailers, current issues in asset-based lending for retailers, the rise of consumer class actions, and hot topics in commercial leasing.