You might want to think twice before posting that photo of you skiing on Whistler Mountain — you never know where it could end up.
Canadian courts are increasingly ordering the disclosure of Facebook content to be used as evidence in trials.
The most recent example is that of University of Victoria Faculty of Law graduate Tamara Fric, who was ordered by Supreme Court of British Columbia Master Carolyn Bouck on April 27 to hand over photos from her Facebook account in a personal injury case.
Fric, who is now articling at a law firm in Calgary, is suing Tracy Gershman and Stuart Myles Gershman for damages following a car accident in 2008 when she was a first-year law student. Fric claimed she was rear-ended by the Gershmans’ car and is still impaired by the injuries she sustained.
The defendants argued that Fric’s Facebook photos are relevant to her claims but Fric countered that the disclosure would violate her right to privacy.
Nevertheless, Bouck ordered that some of her 12,000 photos be disclosed, of which 759 digital pictures were stored in her Facebook profile.
“Photographs which show the plaintiff engaging in a sporting or physical recreational activity — from hiking to scuba diving to curling to dancing — are relevant in discovering the plaintiff’s physical capacity since the accident,” Bouck wrote in
Fric v. Gershman. “I do not agree with the plaintiff’s submission that such information is only relevant when there is a claim or evidence of total disability.
“In terms of proportionality and ensuring a fair trial on the merits, the defence should be given an opportunity to discover the plaintiff on all aspects of her physical functioning and activity level since the accident,” states the decision.
Daniel Sorensen, a lawyer at Waterstone Law Group LLP in Chilliwack, B.C., who practises employment law, says people should be extremely careful about what they post on Facebook.
“People don’t realize just how public everything they put on their Facebook profile could be,” he says. “The privacy settings are there, I’m sure that may protect you from people who want to just access and view your profile, but ultimately anything you put on there can be ordered to be disclosed as evidence.”
Sorensen says he receives more and more cases involving clients’ use of Facebook. He tells clients in personal injury claims to limit their social media use altogether.
“You either have to not have a Facebook account at all, which might be the safest mechanism because you just never know how it could used in the future, or use a Facebook account but just use it as if the whole world could view this if they wanted to,” he suggests.
Alexandra Kozlov, a third-year law student at Queen’s University, is discreet about what she posts on Facebook.
“I wouldn’t put anything up there that I wouldn’t be comfortable putting on a resumé,” she says.
Although the issue of Facebook is continuing to pop up in the courts, Sorensen argues it doesn’t come up as often as it should. With the legal profession generally being quite traditional, oftentimes opposing lawyers don’t ask for access to someone’s Facebook profile, which is really to their own detriment because Facebook is similar to a journal and can tell you a lot about the person.
Specifically with personal injury claims, “people have to be consistent about their story and honest about what they’re saying,” says Sorensen. “If you say you can’t do something, if that’s true you shouldn’t be posting pictures on Facebook or anywhere showing that that’s not the case.”
For Kozlov, who uses Facebook and LinkedIn every day, it’s a matter of being smart about what information you put on the Internet.
“My perspective has always been proceed with caution,” she says. “Whatever you put out there is out of your control once it’s public, even if you have a private Facebook profile where other people can’t search you or can’t look at all your content.”
Kozlov says law students should be particularly wary of their use of social media. “I think [Facebook is] risky for everybody, but especially with law, your reputation and your image is such a big part of your professional career. And you don’t want to be the person who everybody knows has racy photos on your profile or inappropriate comments,” she says.
She suggests creating two Facebook accounts: one for personal use and one for professional purposes. “[This way] you can use social media to both promote and protect your professional image,” she says.
