The "Over Share": How Social Media Posts Can Impact Your Personal Injury Claim

• Published date: 19 December 2020
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Privacy Protection, Personal Injury, Social Media
• Law Firm: Gluckstein Personal Injury Lawyers
• Author: Mr David Lackman

"Before the dawn of the Internet age, people often communicated by writing personal letters to each other. It could be said that such letters served to keep friends and family connected, and provided a medium in which people would share information with each other about what matters to them. They might even discuss the state of their health, if they happened to have suffered a traumatic event such as a motor vehicle accident in the recent past. However, 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. The shocking intrusiveness of such a request is obvious. The defendants' demand for disclosure of the entire contents of the plaintiff's Facebook account is the digital equivalent of doing so." Stewart v. Kempster, 2012 ONSC 7236 (CanLII), 114 O.R. (3d) 151, para 29

Growing up in the age of the Internet can be challenging. Young children have always been taught that everyone makes mistakes and that mistakes can be a good thing because they are how we learn. Usually very few people see our mistakes; if they are embarrassing or cause harm to others, the damage is often limited.

But when you make a mistake online such as uploading a photo that you later regret taking, or making an inappropriate comment, people all over the world can see it. Even if it's deleted, it can live on forever if someone's saved archive.

Adults of course have made these kinds of mistakes too, and some of us have learned that we need to be more careful about what we share on the Internet and with whom we share it. If we use social media to communicate with friends, we may decide to make our accounts private and viewable to only certain people or control which of our friends see certain posts.

Are these privacy tools giving us a false sense of security? It's a question we can consider in a number of ways. In this blog, I look at what rulings can tell us from a few significant personal injury cases where defendants have sought to use social media posts against plaintiffs. The few cases cited are hardly exhaustive, but they are illustrative and instructive.

Public Surveillance, Private Posts?

As you read forward, keep in mind the quoted passage at the top of this blog post, taken from Stewart v. Kempster. When a person launches a personal injury claim which makes assertions about how an accident or medical condition has negatively impacted their physical and/or mental abilities and enjoyment of life, they must...