A Review of the Jurisprudence and Considerations
In a civil lawsuit, it is generally accepted that a public social media page is producible. Private pages, however, are not so straightforward and often become a point of contention between the parties. The question is: Are private social media pages producible? And if so, under what circumstances?
In the most recent decision on the issue, the Ontario Superior Court of Justice ordered the Plaintiff, who was involved in a motor vehicle accident, to produce an Affidavit listing all photographs in her possession, power or control, including those posted on her private social media accounts, that are relevant to issues in the proceedings.
In reaching this conclusion, the Court considered both the relevance of the request and the potential prejudice.
With respect to relevance, the Court outlined that the “assessment of relevance is usually straightforward… with a very low threshold” and that “evidence is relevant if, as a matter of logic and human experience, it renders a fact in issue more or less likely than it would be without the evidence”.
The Court then analyzed photographs produced from the Plaintiff’s public page, one of which showed her on a beach, and was satisfied that a reasonable inference could be drawn that the private areas of her social media accounts would contain similar content, relevant to the question of her ability to engage in a variety of activities and her overall enjoyment of life.
Nevertheless, Justice Boswell was not satisfied that the entire contents of the Plaintiff’s social media accounts were relevant:
“It seems to me to be considerable over-reaching to ask for a blanket order that entitles the defendants to sift through the entire contents of the Facebook and Instagram accounts of the plaintiff.
At this point, not having seen any of the photographs in issue, I am not able to make a determination about the relevance of any of the contents of the plaintiff’s social media accounts. I have determined only that it is likely that those accounts include photographs that are relevant to one or more live issue in this proceeding and which have not been disclosed.”
In commenting on potential prejudice, Justice Boswell acknowledged that “prejudice” includes intrusions into a party’s privacy. Further, if a party to a civil action resists disclosure on privacy grounds, the Court must engage in a balancing of the probative value of the records sought against the prejudice to the party resisting disclosure or to the litigation process, should the production be compelled. Having not seen any of the photographs in question, the Court deferred an assessment of the potential prejudice.
While the ruling in Mohamud provides some clarity on the issue, it must be considered in conjunction with prior cases that have addressed the same issues.
In Knox v. Applebaum Holdings Ltd., 2013 ONSC 789, the Defendant’s request for photographs from the Plaintiff’s private Facebook account was denied. The Court noted that the “moving party’s demand for production rests on a belief that the contents of the Plaintiff’s Facebook account are relevant in terms of assessing her pre and post-accident activities”. However, the Court emphasized that there must be actual evidence of relevance. In the circumstances, the Court found no such evidentiary basis and therefore declined to order production.
By contrast, in Murphy v. Perger,  O.J. No. 5511 (S.C.J.), the Plaintiff was required to produce photographs from her private Facebook account for the period after her motor vehicle accident. Here, the Plaintiff had already produced the public portion of her Facebook profile from before the accident to illustrate the impact of the injuries on her life.
In response, the Court held that “given that the public site includes photographs, it seems reasonable to conclude that the private site would as well” and would thus be relevant.
Further, the Court provided insightful commentary on the prejudice/privacy concerns underlying the request, indicating that the invasion of privacy would be “minimal” given that the Plaintiff’s private page had 366 followers.
Understanding the Implications of Your Social Media Posts When Filing an Insurance Claim
Personal injury lawyers regularly advise clients on the implications of posting on public social media accounts. But the jurisprudence suggests that equal attention should be afforded to private pages/accounts, which can be – entirely, or in part – producible.
While the case law is varied, the courts appear to generally accept that the producibility of private content rests mainly upon an analysis of relevance. Mohamud clarifies that the relevance threshold is “very low” and will be established if the alleged content provides probative value to the underlying allegations and merits of the lawsuit. Accordingly, in the context of personal injury litigation, photographs and/or content which depict the individual’s physical function or capacity to partake in various activities is likely to be deemed relevant (e.g. beach photographs as seen in Mohamud).
The onus is on the requesting party to establish relevance and courts will not be inclined to intrude on a litigant’s privacy if relevance has not been established. It is not sufficient to rely on mere belief or speculation that content from a private page/account is relevant. Moreover, content which depicts the individual simply sitting, standing, or leaning will likely not be deemed relevant.
With the foregoing in mind, individuals are well served to avoid posting content on any social media account, whether public or private, that they would not want to be disclosed during the litigation. Simply put, a private page does not mean total privacy.
Personal injury lawyers should likewise prioritize canvassing these issues as early as possible with their clients and should confirm they are aware of the existence of all of a client’s social media pages. Finally, the lawyer should review these pages with the client to ensure a clear understanding of what may be deemed relevant and producible, as well as make certain that the evidence provided at an examination for discovery is accurate.
 Stewart v. Kempster, 2012 ONSC 7236