Is Social Media the New Surveillance?

1
Is Social Media the New Surveillance ?
2
Despite recent court decisions, social media
surveillance could still be used.

• We tell our kids that nothing they write or
  say online is private. We tell them that the
  follies they share online could follow them into
  adulthood, to their detriment. We tell them to be
  careful what they share, and with whom, on social
  media. So why do so many adults not follow their
  own advice?

3
Case in point

• A Montreal literature professor, Samuel
  Archibald, recently had his disability claim for
  severe depression denied, based on pictures of
  him playing with his kids, posted on Facebook and
  Instagram. Now, the companys assertion that
  these photos reflected a person who is clearly
  not depressed is tenuous, at best. You can have
  depression and still have good days and play with
  your kids.

4

• What is more concerning in this case is the
  use of social media posts as leverage to deny
  claims, in the same way that surveillance is
  used. There are serious privacy concerns at stake
  in this situation and very little in the way of
  regulations to prevent an insurance company from
  using this information.

5
A Development From The Supreme Court Of Canada

• Last year, the Supreme Court of Canada decided
  that in some cases, text messages were private
  and could not be used.
• The case centered around a man, Nour Marakah, who
  had firearms convictions overturned by the court
  because he was convicted in large part due to
  text messages that were found on the phone of an
  accomplice.

6

• Writing for the majority in the 5-2 decision,
  Justice McLachlin said that Marakah had a
  reasonable expectation of privacy concerning the
  messages, meaning that he had a right to
  challenge the police search of the phone as a
  violation of his guarantees under the Charter of
  Rights and Freedoms.

7
Text Messages Arent Social Media Posts, So Will
The Supreme Courts Ruling Apply?

• The presumed right to privacy that was outlined
  in Marakahs case doesnt apply to social media,
  for the moment. That said, another recent case in
  Ontario could tilt the balance in favor of
  privacy.
• The Ontario Superior Court, in Jones v. I.F.
  Propco, the defendants were looking to get access
  to the plaintiffs Facebook posts prior to the
  accident, in 2014.

8

• Justice Leitch wrote The conclusion that
  users have a privacy interest in the private
  portions of their Facebook accounts is more
  persuasive than the conclusion that they do not
  because they shared the account with a number of
  their Facebook friends. Users have the option
  of keeping their Facebook accounts entirely
  public. The plaintiff in this case did not.

9

• Justice Leitchs decision leaned on a previous
  ruling by Superior Court Justice Heeney in which
  he decided that a general request for all
  Facebook posts was an invasion of privacy. As he
  stated, in his ruling It is unimaginable that a
  defendant would have demanded that a plaintiff
  disclose copies of all personal letters written
  since the accident, in the hope that there might
  be some information contained therein relevant to
  the plaintiffs claim for non-pecuniary damages.

10
What Do These Rulings Mean To Your Personal
Injury Case?

• Its certainly a step in the right direction when
  it comes to privacy, but thats not to say that
  you should, weeks after your accident, post
  photos of yourself doing the lambada at a beach
  resort in the Caribbean.
• The jury is still out, so to speak, on the long
  term issues around privacy and social media, and
  until there is definitive legislation in this
  regard (if ever), you need to err on the side of
  caution at all times.

11

• Even if you use the privacy settings on your
  social media accounts, its not set in stone that
  you wouldnt be required to reveal some or all of
  them.
• If you dont currently use privacy settings on
  Facebook, Instagram and so on, you might want to
  set those up. And if you have a pending
  disability case, do yourself and your lawyer a
  favour and stay off social media for the
  duration. Its just not worth the risk

12

• To find out more about social media and a
  personal injury case, read this blog about the
  two go together like oil and water.
• Give me a call if you have any questions or if
  youre not sure about your position. Im here to
  help
• https//derekwilsonlaw.ca