Don’t Tweet This

The Globe & Mail recently reported a story of a woman who was suing her insurance company after a car crash that had left her unable to do a number of day-to-day and recreational activities that she used to enjoy.

So like many defendant insurance companies these days, her insurer, Royal & Sun Alliance Insurance Co. of Canada, turned to her online profile to find evidence that might contradict her story. Without her knowledge, Royal & Sun asked a judge “to order that she preserve the contents and photos on her Facebook page, and then hand them over, including the parts of her page was set to “private” that could only be viewed by her 67 approved friends.”
Do you think the court should have agreed? What are the expectations of privacy that a court should uphold in such cases with respect to online information?
In this case, the judge hearing the matter denied the insurer’s request. Mr. Justice David Price ruled that Royal & Sun had failed to prove the page included relevant material, such as photos showing Ms. Schuster engaged in physical activities.  But the decision is not definitive on the issue of whether Facebook and other social-networking information should be disclosed in court cases such as these.
It is, however, interesting in that it is an example of the growing problems that your online profile can create for you, both socially and legally.
In Ms. Schuster’s case, the decision while in favour of the plaintiff, was not necessarily a clear statement on the issue of privacy, as Judge Price stated that “Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it.” It seems the issue, at least in Ontario, is how relevant the pictures on your Facebook page may be.
Essentially, courts in civil cases can only demand the production of private Facebook pages, or any other document, if the material is directly relevant to the case. So there are protections in place for privacy. But it will be interesting to see how the courts balance the competing interests of disclosure and justice with the privacy of individuals online. 
If you wish to err on the side of caution, you may want to consider how many pictures you post on your social-networking sites and how important it is for you to post those pictures. If you are involved in a civil litigation matter, for example, it may come back to haunt you if you forced to disclose pictures of yourself skiing and snowboarding for instance, while you are claiming personal injury damages. All in all, we all need to be aware of that there may be limits on the privacy we can expect from our Facebook pages and that this potential lack of privacy can cost us.

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