COURT CASES on FACEBOOK PHOTOS and DATA
If you have been injured in a motor vehicle accident, there is a good chance that ICBC will go to social networking sites like Facebook, MySpace, and Twitter, in an effort to gather information on you in order to undermine your credibility. For example, they will look for photos of you doing something you claimed you could not do, they may look for evidence that you were able to take vacations at a time when you said you were seriously injured, or they may look for written information on your wall made by you or your Facebook friends. As a personal injury claimant in an ICBC claim, you should be leery of what you post on your Facebook profile, for fear that it may be construed improperly, and taken out of context.
In Dakin v. Roth, the Plaintiff was injured in multiple motor vehicle accidents, and brought ICBC claims for damages. ICBC’S lawyer introduced photos from the Plaintiff’s Facebook profile, however the Court ruled such photos to be of limited usefulness.
[55] The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.
[56] I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos: “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.
In Fric. v. Gershman, ICBC’S lawyer brought a court application for production of the entire Facebook page of the Plaintiff, including vacation photos, and metadata. The Court held that the application by the lawyer for ICBC was too broad, however did order that some relevant photos be produced.
[54] After considering all of these authorities, I have concluded that some of the plaintiff’s photographs, including those held on the private Facebook profile, ought to be disclosed.
[59] Ms. Fric has also testified that the accident-related injuries have negatively impacted her social life and ability to perform certain sports or recreational activities, either pain-free or at all. While Ms. Fric has remained an active individual, the symptoms from the accident-related injuries are allegedly unresolved. Obviously, the ongoing complaints will influence the award claimed for pain and suffering.
[60] 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.
In Welygam v. Willms, the Plaintiff was injured as a passenger on a motorcycle, and brought an ICBC claim for damages for pain and suffering, income loss, past diminished earning capacity, and diminished earning capacity. As is often the case in ICBC injury claims, the severity and duration of the Plaintiff’s injuries were in question. ICBC’S lawyer admitted liability on behalf of the Defendant. The Plaintiff suffered from pre-existing psychiatric conditions such as depression and anxiety, and a central issue for the court to consider was whether, and if so, to what extent, the Plaintiff’s physical symptoms sustained in the accident aggravated her existing psychiatric issues, and/or whether such psychiatric issues aggravated the physical symptoms arising from the accident. The Court also touched upon the issue of Facebook photos that ICBC’S used in an attempt to discredit the Plaintiff.
[331] Reliance is also placed on …… her Facebook photograph that shows her singing on stage in no apparent discomfort, and the evidence of Mr. Wall that he saw her singing and dancing on stage and jumping off the stage.
[369] I find it persuasive that the plaintiff has been able to perform on stage with her band and twist her body as is shown in the photograph of her on stage. If her back is as badly injured as she says it is, I do not believe she would be able to perform as the photograph indicates.
[370] In addition I accept the evidence of Mr. Wall that he saw her performing on stage with her band after the accident and she was dancing around on stage and in the crowd. When she came off the stage she sometimes put her hand on the stage and jumped off it, a distance estimated by him to be about four feet.
In Guthrie v. Narayan, the lawyer for ICBC entered photos of the Plaintiff’s trip to Las Vegas into evidence, however the Court assigned little weight to these.
[28] I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.
[29] Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.
[30] In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.
In Mayenburg v Yu, the lawyer for ICBC attempted to discredit the Plaintiff at trial by introducing Facebook photographs of her. Some were admissible, and some were not. Of the ones that were, the Court still did not rule that the photographs undermined the Plaintiff’s credibility in any way.
[39] The defendants sought to introduce 273 photographs which they obtained from Facebook “walls” of Ms. Mayenburg’s friends. The bulk of these photos showed no more than Ms. Mayenburg enjoying herself with her friends, for example having a drink in a bar or pub. I ruled inadmissible any photos which did not show Ms. Mayenburg doing a specific activity which she said she had difficulty performing, since they had no probative value.
[40] This left a subset of approximately 69 photographs. These showed Ms. Mayenburg doing things such as hiking, dancing, or bending. However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them. Rather, she said she would feel the consequences afterwards.
[41] In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident. That was not the evidence of Ms. Mayenburg.
[42] As indicated above, I accept the conclusions of Dr. Apel. That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand. Her damages must be assessed on that basis.
In Bagasbas v Atwal, the Plaintiff alleged that she could not participate in certain sporting activities, however the lawyer for ICBC produced photographs from her Facebook page that contradicted her position. This had an effect on the amount of damages awarded to the Plaintiff.
[5] The evidence disclosed that the only pre-accident activity which the plaintiff has given up for the time being is running. She said she could no longer kayak, hike or bicycle, but the defendant produced some of the plaintiff’s own photographs posted on her Facebook page that showed her doing these activities. There was no evidence of decreased capacity to perform household or work related chores. The plaintiff and her husband testified that if the plaintiff exerted herself, she tired more easily than before, but it was unclear whether this related to injury to her upper or lower back.
[6] The distinction between the plaintiff’s complaints of upper back and lower back injury is significant, because there was no evidence linking the upper back injury to the accident. Dr. Ladhani said there was a temporal link between the complaint of pain in the neck, shoulder and upper back regions and the accident, but in his opinion no such link existed with respect to the plaintiff’s lower back injury. Indeed, plaintiff’s counsel made it clear from the outset of trial that the plaintiff was not claiming for compensation for anything arising from her herniated disk or the condition of her lower back.
[7] The medical evidence before me was rather vague. Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006. I further find that the whiplash had probably substantially resolved itself within three months. Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities. The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas. It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock, [1981] B.C.J. No. 31 (S.C.); Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397 (S.C.)).
In Bishop v Minichiello, the Plaintiff sought damages for a brain injury. The lawyer for ICBC brought an application to compel the Plaintiff to produce the hard drive of his computer, as the ICBC lawyer wanted to examine the Plaintiff’s hard drive for the amount of time he spends on Facebook. The Court granted the application.
[46] Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of Court: Ireland at para. 6.
[50] Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29. Metadata is a report of recorded data that is generated by computer software. It is not something created by the user; rather, it is based on what the user does with their computer. In both Park and Desgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use. However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26. Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.
[53] Similarly, the application at hand is of narrow scope. The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.
[54] Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours. The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook. But that is an evidentiary issue for trial. The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.
[55] It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents. This sentiment was approved in Chadwick. Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant. If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged).
[56] The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant. The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed. This is because he spends a substantial amount of time on Facebook chatting with this friend. The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.
[57] The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents. Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.
