In September 2006, Facebook became available to anyone 13 years of age or older with a valid email address. Since then, the social networking giant has accrued upwards of 1.4 billion monthly active users, including 59 per cent of the Canadian population. According to a 2015 Forum Research poll, 30 per cent of Canadians also use LinkedIn, while a further 25 per cent use Twitter and 16 per cent use Instagram. In Canada, like in the majority of the developed world, social media networks are ubiquitous, and are employed not only by individual users, but by celebrities, professional sports teams, local businesses, and multi-national corporations.
Like all other industries in Canada, the legal profession has adopted social media as a means of increasing brand awareness, advertising services, and keeping up to date with breaking news. But social media’s use by lawyers extends beyond promotion. Facebook in particular has slowly become an important source of discovery for personal injury lawyers in Canada, particularly on the defense side. While questions surrounding the intrusiveness of accessing opponents’ social media accounts have been raised, most jurisdictions in Canada have determined that “social media is, without doubt, discoverable and producible if relevant,” according to an article on canadianlawyermag.com. Social media content is discoverable, the article continues “not only because courts have understood that the point of social media is the erosion of privacy, but also because courts have largely adopted the view that privacy will not trump discoverability of evidence as long as there isn’t an impact on third-party interests.”
This May, the National Post profiled Sarah Tambosso, a British Columbia resident whose claim for hundreds of thousands of dollars in damages following two car accidents was rejected based on social media evidence presented by the defence. While Tambosso’s personal injury lawyers claimed that the accidents had left her depressed – “I’m not a happy person,” she told a psychiatrist. “My life sucks.” – the defence presented Facebook photos showing her “drinking and river tubing with friends, attending costume parties,” and “performing at a karaoke competition.” The judge decided that her social activities were inconsistent with a person suffering psychological trauma, and awarded her just $36,000 in damages.
In order to avoid a similar result, personal injury lawyers warn clients to be vigilant with their social media posting. If a client is seeking damages for a serious injury, Facebook statuses or photo albums showing the client going on hikes or playing basketball can raise serious questions about the validity of the claim.
However, even when a client’s social media accounts suggest they live an active and healthy life, this representation can’t always be taken at face value. In many cases, Facebook profiles are used to keep up the appearance of happiness, even when a person is suffering through a painful recovery process.
“Social media can be a difficult kind of evidence to use because it consists of small snapshots of what people want others to hear,” said Rob Currie, director of Dalhousie University’s law and technology institute, in a National Post interview. “It’s different from behaviour you observe or statements you hear someone make; there is a wider variety of inferences the court can draw from it.”
Indeed, in a 2014 car accident trial in B.C., the judge ruled that Facebook photos of the plaintiff on trips and taking part in activities were not enough to prove that her injuries were exaggerated. “A snapshot does not show anything but a moment in time,” the judge said, “and does not disprove that the plaintiff also had many times … declined to participate in activities or felt in significant pain after trying to engage in activities.” The woman was eventually awarded $500,000.
Similarly, an Alberta judge ruled in 2010 that Facebook profiles may project an “overly positive perspective regarding one’s abilities and interests.”
In general, however, personal injury lawyers will warn clients to be extremely careful when posting to social media following an injury. Some lawyers will go so far as to advise their clients to erase all social media profiles during the duration of a trial.
At Waliani Law, we will help you navigate every step of the legal process, and will fight to ensure you receive the compensation, care, and support you need. If you or a member of your family has suffered a serious injury, contact Waliani Law at 647-435-1271 for a free consultation today.
Like all other industries in Canada, the legal profession has adopted social media as a means of increasing brand awareness, advertising services, and keeping up to date with breaking news. But social media’s use by lawyers extends beyond promotion. Facebook in particular has slowly become an important source of discovery for personal injury lawyers in Canada, particularly on the defense side. While questions surrounding the intrusiveness of accessing opponents’ social media accounts have been raised, most jurisdictions in Canada have determined that “social media is, without doubt, discoverable and producible if relevant,” according to an article on canadianlawyermag.com. Social media content is discoverable, the article continues “not only because courts have understood that the point of social media is the erosion of privacy, but also because courts have largely adopted the view that privacy will not trump discoverability of evidence as long as there isn’t an impact on third-party interests.”
This May, the National Post profiled Sarah Tambosso, a British Columbia resident whose claim for hundreds of thousands of dollars in damages following two car accidents was rejected based on social media evidence presented by the defence. While Tambosso’s personal injury lawyers claimed that the accidents had left her depressed – “I’m not a happy person,” she told a psychiatrist. “My life sucks.” – the defence presented Facebook photos showing her “drinking and river tubing with friends, attending costume parties,” and “performing at a karaoke competition.” The judge decided that her social activities were inconsistent with a person suffering psychological trauma, and awarded her just $36,000 in damages.
In order to avoid a similar result, personal injury lawyers warn clients to be vigilant with their social media posting. If a client is seeking damages for a serious injury, Facebook statuses or photo albums showing the client going on hikes or playing basketball can raise serious questions about the validity of the claim.
However, even when a client’s social media accounts suggest they live an active and healthy life, this representation can’t always be taken at face value. In many cases, Facebook profiles are used to keep up the appearance of happiness, even when a person is suffering through a painful recovery process.
“Social media can be a difficult kind of evidence to use because it consists of small snapshots of what people want others to hear,” said Rob Currie, director of Dalhousie University’s law and technology institute, in a National Post interview. “It’s different from behaviour you observe or statements you hear someone make; there is a wider variety of inferences the court can draw from it.”
Indeed, in a 2014 car accident trial in B.C., the judge ruled that Facebook photos of the plaintiff on trips and taking part in activities were not enough to prove that her injuries were exaggerated. “A snapshot does not show anything but a moment in time,” the judge said, “and does not disprove that the plaintiff also had many times … declined to participate in activities or felt in significant pain after trying to engage in activities.” The woman was eventually awarded $500,000.
Similarly, an Alberta judge ruled in 2010 that Facebook profiles may project an “overly positive perspective regarding one’s abilities and interests.”
In general, however, personal injury lawyers will warn clients to be extremely careful when posting to social media following an injury. Some lawyers will go so far as to advise their clients to erase all social media profiles during the duration of a trial.
At Waliani Law, we will help you navigate every step of the legal process, and will fight to ensure you receive the compensation, care, and support you need. If you or a member of your family has suffered a serious injury, contact Waliani Law at 647-435-1271 for a free consultation today.