ICBC’s Application for Facebook materials refused

As your lawyers, one of our primary roles is to protect your privacy. We take your privacy very seriously.

When you are hurt in an accident, obviously you have to share some parts of your life in order to prove your claim. However, the defendant is only entitled to information that is relevant to the claim. They do not get to access every part of your life in the hopes that they find something they can use against you.

In personal injury claims, ICBC will often search Facebook for photographs of you, in the hopes that they find a photo that shows you doing something inconsistent with your complaints.

Over the years, there have been a number of applications by ICBC to the court for production of a plaintiff’s Facebook profile. Production is rarely granted, and when it is, it is highly restricted. Even when Facebook materials are used in trial, they are often of limited usefulness. For example, in, Guthrie v. Narayan, 2012 BCSC 734, Mr. Justice Goepel said:

…I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.

Similarly, in an application for vacation photos, Master Caldwell in Gasior v. Bayes, 2005 BCSC 1828 noted that photos are “snapshots in time and accordingly are taken at best out of context.”

The comments of the Court highlight exactly the problem with this type of information – if you are injured and do your best to get back to your normal life despite your injuries, ICBC may try to argue that you are less injured than you are. However, if you do nothing to get back to your old self, ICBC may argue that you are not doing enough to improve your condition. It is a lose-lose situation for the injured person.

The October 2, 2014 Application

Recently, ICBC brought an application before Master Baker for production of our client’s entire Facebook contents, including all photos, comments, and private messages between friends and family.

Greg Phillips strongly resisted the application, and on October 2, 2014, we made submissions to Master Baker on why the materials should no be produced (a Master is a court official that makes decisions on applications such as these – they cannot hear trials).

Our client was understandably very upset at the thought of turning over the entire Facebook contents, including private messages. The client had always had the Facebook privacy settings set very high, and had ended up deactivating the account at some point. Despite this, ICBC had been able to find some photos of our client by searching through photos of the client’s Facebook friends.

ICBC argued that these photos, which showed the client with friends at a summer cabin, were inconsistent with the client’s injury complaints (primarily pain in the neck and shoulders).

In lengthy responding submissions, we argued that the client’s privacy interests outweighed ICBC’s hope that there might be something they could take out of context to use against the client. Further, we argued that the photos did not show any such inconsistencies, and that what ICBC was doing was, in fact, trying to punish the client for “trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident”.

Master Baker agreed with us. He compared ICBC’s application to asking to put a bug inside a room where people are having a private conversation, and found as a fact that there were no inconsistencies between the photographs and the complaints. The Master noted, in fact, that if anything, the photos were consistent the reported symptoms of the plaintiff.

As a result, ICBC’s application did not succeed, and our client’s privacy rights were maintained.

If you have any questions about your privacy rights in civil cases, including ICBC and personal injury cases, please do not hesitate to contact Greg Phillips for a no-cost, no-obligation consultation.