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Can Social Media Affect Your Personal Injury Case?

  • August 25, 2016
  • by WILL DAVIDSON LLP

Over the past decade, social media has exploded and has become a significant part of most of our lives. It has completely changed how we connect with each other, share information, stay current on Events, and promote ourselves and our businesses.

a man in a suit holding a cell phone

Anyone who uses social media will inevitably leave some sort of online footprint, often times permanently. That’s why it’s so critical to use social media responsibly, especially when you find yourself a party to a civil lawsuit. It’s also the reason why any prudent lawyer will caution their clients on the impact their social media usage and presence has on their privacy, and their lawsuit.

How Can Your Social Media Usage Affect Your Case?

While litigation addressing the admissibility and usability of social media in a personal injury litigation context continues to evolve, Kourtesis v. Joris [2007] O.J. No. 2677 should serve a caution of how social media can be used against a plaintiff at trial.

The plaintiff in this case, Ms. Kourtesis, was involved in a serious car accident, and the main issue at trial was whether she sustained sufficient injuries to warrant an award for damages for pain and suffering and loss of enjoyment of life.

As a result of the accident, the plaintiff claimed to have suffered injuries to her neck and shoulders as well as memory and concentration problems. As a result of these injuries, she claimed that her social life had been ruined.

In the middle of the trial, the defendant’s lawyer obtained an order from the court which allowed them access to additional pictures on the plaintiff’s Facebook account. These pictures showed, among other things, the plaintiff clearly socializing with friends on St. Patrick’s day just three months before the trial started.

The court found that these pictures contradicted her allegations regarding her social life being ruined, and that her testimony with respect to the pictures completely undermined her claim to have suffered memory and concentration problems. The plaintiff’s claim for damages for pain and suffering was therefore dismissed entirely.

Two years later, a judge in Leduc v. Roman, [2009] OJ No 6838,  ruled that postings on Facebook pages are considered documents within the meaning of the Ontario Rules of Civil Procedure. In this case, it was held that a party must produce any of his or her Facebook postings relevant to any matter in issue in an action. The court further held that where a party maintains a private Facebook profile, it is reasonable to infer from the presence of content on the party`s public profile that similar content likely exists on the private profile.

Following these rulings, the numerous requests made by Defence Lawyers to access plaintiff’s Facebook profiles have been met with mixed success. On one hand, a court will not likely ever permit full access to a plaintiff’s Facebook profile, as much of the information is private and not relevant to the lawsuit. On the other hand however, courts have ruled that there are likely relevant documents or pictures on a private Facebook account, and those photographs may be need to be produced to the opposing side.

Helpful Tips For Social Media Usage

While this area of law continues to evolve, it does seem obvious that a plaintiff in a lawsuit has an obligation to produce relevant photographs, videos and documents on a Facebook account. Therefore, it’s best to follow these simple practices to ensure that your reputation and credibility are not damaged if you ever find yourself a plaintiff in a civil action:

  1. Don’t confirm any Facebook friend requests from people you don’t know.
  2. Don’t post anything about your lawsuit or any discussions you’ve had with your lawyer on any social media website.
  3. Untag yourself from any pictures of you taken after your injury that may undermine your case, or contradict what you have said at your Examination for Discovery.
  4. Consider an alternative method of sharing photos with specific friends, such as e-mail.
  5. Before writing any status update, comment, or before posting any photos, think carefully about whether you would want this information brought up in a courtroom at a later date.

About Meghan WalkerA portrait of Meghan Walker

Meghan Walker is a Personal Injury Lawyer with Will Davidson LLP. Meghan articled with Will Davidson LLP and returned as an associate. Meghan’s area of practice includes motor vehicle accidents, medical malpractice, product liability and property loss. Contact Meghan today for your no-obligation consultation.

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