The Loss of Your Privacy

by Kris Bonn

A recent case Isacov v. Schwartzberg, 2018 ONSC 5933, destroys an injured plaintiff’s privacy in his or her social media accounts. Master Short ordered the plaintiff to produce electronic or paper copies of photographs on any of the plaintiff’s Facebook and Instagram accounts. This case is a warning to anyone who has been injured in a motor vehicle crash, from medical malpractice, slip or trip and fall or fighting an insurance company for disability benefits – what you post on Facebook or Instagram will be produced to the defence. Once you start a lawsuit, your privacy in your social media is gone.

Is this fair?

This is difficult to answer. As noted by Master Abrams in another recent case, Papamichalopoulos v. Greenwood, 2018 ONSC 2743:
[10] Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found (depictions which, on their face appear to be at odds with the plaintiff’s allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant to the effect (and its evaluation) of the injuries on the plaintiff’s enjoyment of life; and photographs taken before are relevant for comparison.

But what about the fact that pictures on social media can be misleading? What about a person’s privacy rights? Unfortunately, the law favours the defence on these points. I don’t agree. An injured plaintiff is the victim. She or he has been hurt by the negligence of another person or is being refused disability insurance benefits. Just because she brings a legal action to enforce her rights for compensation or to enforce a contract, should not mean giving up all privacy. This case goes too far. But it is the law. This means that if you are plaintiff in a legal action be prepared to produce all photographs, whether private or public from your social media accounts. The best advice is to stay off of social media and not post any pictures until the case is over. This could be a blessing in disguise. Most of us are spending too much time on social media already.

Kristian Bonn,

Personal Injury Lawyer, Bonn Law