Roughly a year ago, I wrote a blog post titled “Your Facebook Profile as Evidence Against You.” Since that post, I have been contacted numerous times on the topic of Facebook profiles as evidence, most recently by Canadian Lawyer 4 Students magazine for their article Judge Orders Law Student to Hand Over Facebook Pics.
In April of this year the Supreme Court of British Columbia made a ruling in the decision of Fric v. Gershman 2012 BCSC 614 concerning the use of evidence from Facebook profiles in personal injury claims. In this case the court ordered vacation photographs from the injured party’s Facebook profile to be disclosed. The photographs that were ordered to be disclosed included those showing the Plaintiff engaged in a physical recreational activity.
In coming to its decision, the Court considered whether the evidence on the Facebook profile was material and relevant, and if it was material and relevant, whether the Plaintiff’s right to privacy might override disclosure obligations. Interestingly, although photographs posted on Facebook were ordered produced, the Court allowed the injured party to edit those photographs to protect the privacy of third parties appearing in the photograph. Additionally, the Court held that the injured party was not obliged to produce commentary on the photographs which may have been posted on Facebook.
Whether your photos or comments are on Facebook, Twitter, Flickr, Picasa, YouTube, saved on your hard drive, in an old-fashioned photo album or on some other site or in some other physical location, if they are relevant and you have access to them, you generally have an obligation to disclose them, and you cannot hide behind privacy settings. Failure to disclose such evidence risks a court order forcing you to provide access to such sites and locations and the materials available therein. If the evidence found contradicts your claim, it also risks damaging your entire case.
Of course the easiest way around this entire issue it to simply be honest in your claim. Don’t claim your injury is greater than it is, and that you are unable to perform activities that you know full well you can. If there’s nothing to hide, then the defence can look at all the images they want, from whatever site they can find, and the only thing they will see is evidence of a truly injured individual, getting through life with their injury as best they can.
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