Facebook and Personal Injury Law

Many of you are aware of such social networking sites such as ‘Facebook’ or ‘Myspace’ on the Internet. Such sites allow users to post information on the web about their personal life including pictures, blogs, messages and even updates on day-to-day activities. Although these sites may seem private and fun to you, they can have a damaging effect on your legal case.

Under the Rules of Civil Procedure, rule 30.06 states that “a party has a positive obligation to disclose every relevant document in a party’s possession…”

Until recently, defence lawyers in personal injury actions had to prove that there was relevant material on a social networking site to ask for the content of that network page; However, a recent decision handed down at the Ontario Superior Court of Justice in Leduc v. Roman 2009 CanLII 6838 has clarified the Court’s position.

Justice Brown heard an appeal from Master Dash’s Order, stating the following: Material on ‘Facebook’ may be relevant to a personal injury action. Although information contained on the profile, may speak to the activities and health of the plaintiff before and after the alleged injuries, the evidence provided by defence counsel with respect to content of those pictures, was purely speculative and therefore not ordered.

Justice Brown reviewed Master Dash’s decision and quoted the “Terms of Use” posted by ‘Facebook’. It stated that the site “is a social utility that connects you with the people around you”. Justice Brown went on to state that “Although web-based social networking sites like ‘Facebook’ and ‘Myspace’ are recent phenomena, posted content constitutes data and information in electronic form as documents under the Rules of Civil Procedure.” Furthermore, it was decided that this electronic information was in possession and control of the plaintiff as he had the ability to post and remove information at his own will.

The Court found that a person who maintains a private profile is in no different position than someone with a public profile. Both parties would be obliged to produce all the information in the profile. Because ‘Facebook’ is a utility to share information with others, all information posted would not be considered privileged.

However, the one shining light that a plaintiff may take from this case, is that mere existence of a ‘Facebook’ profile does not entitle a party to gain access to everything on the site. Most evidence relating to the existence of evidence on these sites will be determined at Examinations for Discovery. However if defence counsel asks the plaintiff about their network profiles; the answers may conclude that there is enough evidence to produce the complete profile.

CONCLUSION

It is important that you are aware of the above noted decision given your case at hand. We would recommend that you do not publish material on the site while you are involved in a personal injury action and in fact delete or suspend your profile indefinitely until resolution. However it you insist on keeping a profile on one of these sites, be aware of what is posted by yourself and your friends as they may have damaging consequences to the outcome of your case.