Wednesday, June 10, 2009
Social Websites

Websites such as MySpace and Facebook, are a relatively new phenomenon. These websites are becoming increasingly prevalent in our society. They have become a prominent feature in the lives of many people, including of course those who have fallen victim to injury caused by someone's negligence. It is interesting to see how courts have been dealing with the concept of Facebook and the impact this site has had on the personal injury claims of injured victims. It is important that plaintiffs in personal injury litigation with Facebook pages be apprised on this issue. Wagners is taking an interest into how these sites are dealt with in a legal environment.

Parties in personal injury litigation are required to disclose, with a number of exceptions, all relevant documents in their possession. They are further required to preserve all relevant electronic information. The recent Facebook phenomenon has injected an interesting question to a party's disclosure obligations: are Facebook photographs, blogs and messages relevant to a personal injury proceeding? This question has not yet been answered by a Nova Scotia court. In fact, a very few cases across Canada dealt with this issue.

Leduc v. Roman is a recent 2009 case out of Ontario. The injured victim of a car accident had a restricted Facebook profile. The Court found that the plaintiff had an obligation to preserve his account and to produce any information on his profile that demonstrated activities and enjoyment of life. The Court suggested that personal injury lawyers explain to their clients that materials posted on Facebook may be relevant to the proceeding. The Court was quick to note that the mere existence of a Facebook profile does not entitle a defendant to gain access to all material placed on the site. Before production will be ordered, a party must have evidence indicating that relevant information is likely contained on the Facebook profile. Without this evidence, one's privacy interests will be upheld.

It remains to be seen how this decision will impact the claims of personal injury victims in Nova Scotia. It certainly suggests that sufficient evidence must be advanced by a defendant demonstrating the existence of relevant information before a Court will delve into the privacy rights of personal injury claimants with restricted Facebook profiles. The same cannot be said for those with 'public' profiles. Those with 'public' profiles must heed this recent decision and would be well served to limit the public's access to their Facebook page.

Wagners continues to monitor this emerging area of law with a view to how these websites may impact litigation of its clients' claims for damages, class actions and other types of proceedings.