Last year, the Supreme Court of Canada decided that in some cases, text messages were private and could not be used. But, Text Messages Aren’t Social Media Posts, So Will The Supreme Court’s Ruling Apply?

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 company’s
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 Aren’t Social Media Posts, So
Will The Supreme Court’s Ruling Apply?
• The presumed right to privacy that was
outlined in Marakah’s case doesn’t 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 plaintiff’s 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 Leitch’s 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 plaintiff’s
claim for non-pecuniary damages.”

10. What Do These Rulings Mean To Your Personal
Injury Case?
• It’s certainly a step in the right direction when
it comes to privacy, but that’s 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, it’s not set in stone
that you wouldn’t be required to reveal
some or all of them.
• If you don’t 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. It’s 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 you’re not sure about
your position. I’m here to help…
https://derekwilsonlaw.ca