Social Media Posts and Personal Injury Cases: Anything you say or post may be used against you in a court of law

In News by northernlaw

The news is constantly buzzing about privacy on social media platforms. Many of us voluntarily post on social media so that our pictures and posts can be viewed by a wide audience, but we may also create private posts and take steps to ensure that our information is not used for nefarious purposes. The reality is that a person’s privacy becomes vulnerable once they are embroiled in a civil lawsuit.

A fundamental rule of law is that all evidence that is “relevant” is generally admissible in court, unless there is some good reason to justify excluding that evidence (R. v. Collins, 2001 CanLII 24124 (ON CA) at para 16-19).

It is not difficult to imagine how social media posts could be relevant in a personal injury case. If someone claims to be seriously injured and unable to move freely, then a social media post displaying that person dancing the night away at a nightclub, or climbing mountains at exciting getaway vacations, may be relevant regarding whether that person is truly injured. Likewise, if a person claims to have lost the use of their hands in a motor vehicle accident, then posting the results of their latest do-it-yourself project could be detrimental, if not fatal, to their lawsuit.

Basically, social media posts can easily create trails of evidence that can be used against a plaintiff. It would be naïve to presume that an insurance company or defendant in a personal injury lawsuit would not thoroughly review a plaintiff’s social media posts for inconsistencies.

It is debatable whether a person’s public social media posts are “private”. Rule 30 of the Rules of Civil Procedure requires every litigant to disclose and produce every document in their possession, control or power that is “relevant” to the matters at issue in the litigation. Essentially this rule means that, if a litigant can get their hands on a document, then they must disclose it if it is relevant to the case and not otherwise privileged. Rule 30.01(1)(a) now clarifies that a “document” under Rule 30 includes “data and information in electronic form”, and Rule 30.01(1)(b) now clarifies that a document is deemed to be in a party’s “power” if the party is “entitled to obtain the original document or a copy of it and the party seeking it is not so entitled” (for example, if only the party can access a password-protected account). Under this broad definition, the Superior Court of Justice in Leduc v. Roman, 2009 CanLII 6838 held that “any relevant public postings by a party are producible” (para 29). Historically, documents largely referred to paper records or tapes (or some physical medium). Today, there is a much broader definition of documentation, which includes not only traditional formats of media, but may further include social media posts and/or other electronic records for an opposing party to review.

Courts have developed a degree of protection for private social media accounts depending on the circumstances. For example, the court in Merpaw v. Hyde, 2015 ONSC 1053 held that there was not enough evidence posted on the plaintiff’s public profile to justify an order forcing him to disclose posts on his private profile. In other words, parties cannot go fishing through another person’s private accounts unless there is already enough evidence to suspect that there is something relevant to be found there.

Conversely, in Leduc v. Roman, 2009 CanLII 6838, the Judge ruled relevant information from a private account disclosed because “a party who maintains a private, or limited access, Facebook profile stands in
no different position than one who sets up a publicly-available profile” (para 32). In other words, the argument is that litigants who create social media accounts have already voluntarily given up a degree of their privacy.

Similarly, in Papamichalopoulos v. Greenwood, 2018 ONSC 2743, the Court held that a personal injury plaintiff needed to produce photos from his own private Facebook profile because the plaintiff’s public profile depicted him “riding a jet-ski, bending over at pronounced angles while lifting his spouse, driving, and holding up his then 2-year-old son – all without any visible signs of discomfort” (para 9). This case provided that a public account can provide the evidence needed to decide whether a private account may have relevant information to be disclosed.

Finally, in the case of Isacov v Schwartzberg, 2018 ONSC 5933, the plaintiff alleged she had suffered serious injuries to her foot, but she posted pictures of herself on a dance floor wearing high heels. The Superior Court of Justice held that “in the present technological environment there is a need to include Facebook and similar online data relevant to matters in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents” (para 36). In other words, the court concluded that the plaintiff’s privacy concerns were overridden by their relevance to the personal injury lawsuit, and that “the plaintiff has put her social life in issue as well as her ability to do certain activities being negatively affected by her injuries from the accident[…] Under these circumstances the privacy argument has little weight” (para 31, citing McDonnell v. Levie , 2011 ONSC 7151 at para 16).

The overall lesson to be drawn is if you have suffered an injury, you should exercise some caution in what you post online. Anything you have posted online may be used against you in a court of law.

If you have been injured and wish to pursue an injury claim, it is in your best interest to contact a qualified personal injury lawyer. The professionals at Northern Law LLP can help you navigate the rules of evidence and provide professional guidance at every stage of your case to maximize the chance that your case will be successful.

For professional legal advice you can trust, call us at (705) 222-0111 or email us at Our team of lawyers are committed to ensuring your case runs smoothly and efficiently so you can focus on your recovery.