The lawyers at Aaron Waxman & Associates are experienced with Disability, Personal Injury and Employment claims.
Insurance companies and their adjusters are increasingly relying on social media as an investigative tool.
Insurance companies are using social media to verify and challenge the accuracy of personal injury claims.
So, what types of accounts are being looked at? Facebook, LinkedIn, Twitter, My Space, hi5.
But, insurance companies haven’t gone public with their policies about social media. We don’t know how they are collecting information, monitoring social media and for what purpose.
Anyone who has a claim for accident benefits or disability benefits should be aware of these tactics and consider what they post on social media sites. You have the ability to choose your privacy settings on sites like Facebook and Twitter. Be wary of what your friends post, especially if they have open profiles and check your settings regarding visibility for these posts.
Clients should also be aware of anonymous “friending” to gain access to Facebook or directing a third party to “friend” someone for the purposes of investigation. These are unethical practices.
According to a recent article published by Canadian Underwriter, “As much as social media sites can help to inform, it is also important to view the information as a snapshot. You have to incorporate it into a total assessment of the claim. You can’t just hang your hat on social media.”
What do the courts have to say about the use of social media in litigation?
Judges in Canada are sorting through the consequences of the uses of social media. The following Ontario cases are cases where judges ruled that content posted on social media sites (Facebook) is admissible as evidence in limited form:
Kourtesis v. Joris (2007)
Leduc v. Roman (2009)
Wice v. Dominion of Canada General Insurance (2009)
These cases show that defence lawyers have successfully argued for the production and preservation of this ‘private’ information in some capacity.
In 2011, an Ontario Superior Court Justice ordered production of a plaintiff’s social media photos in the case, Morabito v. DiLorenzo. This was a motor vehicle accident case. Justice James A. Ramsay ruled that only photographs were relevant evidence, but not status updates or wall posts. The plaintiff was also ordered to re-attend examination for discovery to answer questions about the photos posted on Facebook and other social networking sites.
In these cases, it is about what content is relevant, and what the defense can prove is relevant to the case. The ruling judges must find the content is relevant to the issues in the case.
Another issue that arises is whether or not the plaintiff or claimant has to preserve his or her Facebook site (not allowed to delete any posts or tweets).
What happens if the content of a plaintiff’s social media profile is not relevant to the case?
In Schuster v. Royal and Sun Alliance (2009), the defence lawyers did not provide enough evidence to show the plaintiff’s Facebook profile contained relevant information. The plaintiff did not have to produce or preserve her Facebook page.
The area of social media law is still emerging. In terms of case law, decisions can go either way, so there is no clear direction as of yet.
When it comes to decisions from the Financial Services Commission, there doesn’t seem to be a clear direction either. A January 2011 decision, Prete and State Farm, found that the relevance of images (video posts and pictures) posted on a Facebook did not have enough relevance when weighed against other factors such as sensitivity and practicality. The arbitrator declined State Farm’s request for the productions.
In Rakosi and State Farm, the arbitrator ordered that the applicant produce photos of herself from Facebook and hi5 sites. The request from State Farm met the test for a “semblance of relevance”.
Plaintiff’s lawyers have to advise clients of the potential for social media sites to be used as surveillance. A good idea is to set this out in your initial letter to the client, and to remind them of this when preparing them for discoveries.
* This blog is for informational purposes only and is not meant to substitute legal advice. Please read our disclaimer for further information.
* All of our lawyers are licensed by The Law Society of Upper Canada
* Office in Toronto and able to represent people in the province of Ontario