Despite recent court decisions, social media surveillance could still be used.
We tell our kids that nothing they write or say online is private. We tell them that the follies they share online could follow them into adulthood, to their detriment. We tell them to be careful what they share, and with whom, on social media. So why do so many adults not follow their own advice?
Case in point: A Montreal literature professor, Samuel Archibald, recently had his disability claim for severe depression denied, based on pictures of him playing with his kids, posted on Facebook and Instagram. Now, the company’s assertion that these photos reflected a person who is clearly not depressed is tenuous, at best. You can have depression and still have good days and play with your kids.
What is more concerning in this case is the use of social media posts as leverage to deny claims, in the same way that surveillance is used. There are serious privacy concerns at stake in this situation and very little in the way of regulations to prevent an insurance company from using this information.
A Development From The Supreme Court Of Canada
Last year, the Supreme Court of Canada decided that in some cases, text messages were private and could not be used.
The case centered around a man, Nour Marakah, who had firearms convictions overturned by the court because he was convicted in large part due to text messages that were found on the phone of an accomplice.
Writing for the majority in the 5-2 decision, Justice McLachlin said that Marakah had “a reasonable expectation of privacy concerning the messages, meaning that he had a right to challenge the police search of the phone as a violation of his guarantees under the Charter of Rights and Freedoms.” (Source)
Text Messages Aren’t Social Media Posts, So Will The Supreme Court’s Ruling Apply?
The presumed right to privacy that was outlined in Marakah’s case doesn’t apply to social media, for the moment. That said, another recent case in Ontario could tilt the balance in favour of privacy.
The Ontario Superior Court, in Jones v. I.F. Propco, the defendants were looking to get access to the plaintiff’s Facebook posts prior to the accident, in 2014.
The judge said no, indicating that the images were not relevant, but the interesting point here is that because Facebook has a public option, images that are shared only with ‘friends’, and not the public at large, does not necessarily mean that you are giving up your right to privacy.
Justice Leitch wrote: “The conclusion that users have a privacy interest in the private portions of their Facebook accounts is more persuasive than the conclusion that they do not because they shared the account with a number of their Facebook ‘friends.’ Users have the option of keeping their Facebook accounts entirely public. The plaintiff in this case did not.” (Source)
Justice Leitch’s decision leaned on a previous ruling by Superior Court Justice Heeney in which he decided that a general request for all Facebook posts was an invasion of privacy. As he stated, in his ruling: “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.” (Source)
What Do These Rulings Mean To Your Personal Injury Case?
It’s certainly a step in the right direction when it comes to privacy, but that’s not to say that you should, weeks after your accident, post photos of yourself doing the lambada at a beach resort in the Caribbean.
The jury is still out, so to speak, on the long term issues around privacy and social media, and until there is definitive legislation in this regard (if ever), you need to err on the side of caution at all times.
Even if you use the privacy settings on your social media accounts, it’s not set in stone that you wouldn’t be required to reveal some or all of them.
If you don’t currently use privacy settings on Facebook, Instagram and so on, you might want to set those up. And if you have a pending disability case, do yourself and your lawyer a favour and stay off social media for the duration. It’s just not worth the risk. To find out more about social media and a personal injury case, read this blog about the two go together like oil and water.
Give me a call if you have any questions or if you’re not sure about your position. I’m here to help…
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