Civil litigation and your Facebook photos

There is considerable public concern about privacy and ownership of content uploaded by Facebook users.

People scour the website's Privacy Policy for flaws, adjust their settings to limit who can view their content and even send each other tips how to (allegedly) post wording on their profile to protect their uploaded content from becoming Facebook's property.

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Despite these efforts, some British Columbians are at risk of their Facebook profile content being made public in a sphere they may have never considered: the courtroom.

Recent Canadian court-judgments have provided defendants to lawsuits access to content on a plaintiff's Facebook profile. This is most common in personal injury actions, and in B.C. such actions often involve the Insurance Corporation of British Columbia, who has conduct of the defence.

Such a recent B.C. decision was rendered in an action called Fric v. Gershman.

Ms. Fric is claiming damages for injury she says she suffered in a motor vehicle accident. Mr. Gershman was the driver of the other vehicle, which allegedly rear-ended Ms. Fric's vehicle. Allegedly the injuries include pain and fatigue, and affected her studies when she was still in school, and may now affect her performance at work. She also says she is a "social person" and her social activities were curtailed by her injuries.

Since the accident Ms. Fric travelled considerably; including a school-related trip that included organized games and activities. She posted to Facebook photographs taken during these travels, but shields them from public view by adjusting her privacy settings. She does, however have 890 Facebook Friends, all of whom have access to this content.

As of February 2012, Ms. Fric's Facebook profile stored 759 photographs and one video. She did not disclose the precise nature of these to Mr. Gershman. She admitted in the action, however, she has participated in a wide array of sports since the accident, "from hiking to scuba diving to curling to dancing", but explained she has to modify her means of doing so; e.g. securing scuba tanks while in water rather than on land.

Mr. Gershman sought an order from the Supreme Court of British Columbia that Ms. Fric disclose to him all relevant photos and videos in her possession, including those on her Facebook profile.

He also sought direct access to her profile. He argued these pictures may reveal a level of activity inconsistent with Ms. Fric's complaints of pain, discomfort, and social withdrawal, or depict her participating in activities without modifying her means of doing so. He also argued he required access to other information on the profile, because Ms. Fric failed to disclose information about the photos, such as when they were uploaded.

Ms. Fric argued the requests were "overly broad". She argued she has admitted she continued with school, work, and social activities, but with fatigue; thus the photos and video would merely show a "snapshot in time". On that basis alone, they ought not be ordered disclosed. They also ought not be ordered disclosed due to privacy rights of Ms. Fric and others who may be depicted in photos or connected to the Facebook profile.

The court reviewed case law, court rules, and academic commentary. After considering the allegations in Ms. Fric's claim the court concluded some of the photos, specifically any depicting her participation in games during her school-related trip or on vacation since the alleged date of injury, and the video had to be disclosed. The photographs (where possible) must be identified by location, date and time. They may, however, be edited to protect privacy rights.

What is the significance of this for the average British Columbian involved in a personal injury claim?

As soon as you commence an action in a B.C. Court, your data is potentially exposed to public scrutiny, whether stored on or offline. The means of addressing this vary from case to case. That said, a few points can be taken from the case law:

1)The court will strive to protect other people's privacy, and will limit document-disclosure accordingly;

2)If asked to order disclosure of a photo the court will consider how many people are already allowed to see it. The greater number of people who already have access, the more likely the Court will order disclosure;

3)The choice whether to order disclosure will be a balancing-act between "legal relevance" to the claim as compared with the potential for harm if the material is disclosed.

Disclosure in Court of materials posted online is an emerging issue. It is also one often not given due attention.

While a discussion how to address this is beyond the scope of this article, it suffices to say that the fine points in any case will turn on the facts, as well as subtleties of the law.

It is, therefore, a matter that ought to be discussed with a lawyer at the earliest opportunity by anyone contemplating commencing (or already involved in) a B.C. personal injury action.

Corey Steinberg is a lawyer practicing personal injury and general litigation at Double Diamond Law in Whistler.

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