It is important to remember that anything on your Twitter, Facebook, and Linkedin that is already publicly accessible can also be viewed by an insurance company. Although being able to view your social media profile is not synonymous with being able to use it as evidence against you in a legal action. However, if there are photos or posts on your social media accounts, which appear to contradict a claim you have made about your physical or mental health, then counsel for the insurance company would arguably be remiss to ignore it. If social media content is being used as evidence in a civil trial it is subject to the rules of discovery. Discovery is the process by which parties in a civil action obtain evidence from one another. Most major social media websites such as Linkedin, Facebook, and Twitter have privacy settings, so the content on a profile might not be readily viewable. If the insurance company request that you disclose your private social media profile you can refuse. The insurance company will then have to bring a motion asking the court to order you to disclose the contents of your social media profile to them. The rules both parties must follow during a civil proceeding, including the discovery process, are contained in the Nova Scotia Civil Procedure Rules. Rule 14.01 of the Nova Scotia Civil Procedure Rules sets out a threshold standard of relevancy that must be met for a court to order a party to produce and disclose documents or materials to another party. The threshold standard of relevancy that has been used in Nova Scotia since 2009 is trial relevancy. This means that the party who is seeking the disclosure from the other party must demonstrate to the court that the disclosure will likely lead to information that is relevant to proving a fact or claim sought to be established at trial. Therefore, the onus would be on the insurance company to satisfy a court that your social media profile meets this threshold, and disclosing it would likely lead to information that would be relevant at a trial. The Nova Scotia Supreme Court in Conrod v Caverley, 2014 NSSC 35 has adopted the principle that was used in Murphy v Perger,  OJ No 5511 (S.C.J.), when deciding whether the disclosure of a private social media profile, specifically a Facebook account, should be ordered because it likely contained relevant information. A person maintains a public and private portion of their Facebook profile, the court is entitled to infer that the contents of the private portion will be similar to the contents of the public portion. It follows that if the public profile contains relevant photographs or information, it is reasonable to infer that the private profile will contain similar relevant evidence (Conrad v Caverley, 2014 NSSC 35 at para 24). Simply restated, if the court decides that there is relevant content on the public portion of a social media profile, then it is reasonable for it to conclude that the private portion of the profile will contain similar relevant content. The court will not allow for a fishing expedition through the plaintiff’s online social media accounts by a defendant insurance company. However, if it can be established by a defending insurance company that there is likely relevant content on the plaintiff’s private social media account, then a judge can grant a motion ordering that the plaintiff produce and disclose their social media profile.
Questions about your social media footprint?
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This is a guest post by Sara Gillett, Schulich School of Law