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Facebook – Still Not Your Friend

In the days before digital everything, people wrote letters to one another. It was quaint but effective. Sometimes people wrote back. Grandma sent a birthday card in the mail and there was always a $5 bill stuck in middle (try that one on for size digital greeting card company). We don’t write many letters anymore. We send email. We don’t mail photos. We post them on our Facebook account and family members and friends that we’ve carefully chosen get to see them. One billion people that we didn’t choose don’t get to see them. That’s what privacy settings are for. We use them when we have an expectation of privacy.

In lawsuits, when we’re injured, we ask for compensation. The defendant gets to test our case. The law says the defendant gets to see all of the relevant documents. It’s a little bit like pulling your pants down. But there are limits to what the defendant gets to see. Back when we wrote letters, the defendant didn’t get to come in and sit on the sofa rifling through our photo albums or reading letters to and from friends. Unfortunately, that’s what the courts have been allowing to happen with our Facebook accounts. Until recently. In a case called Stewart v Kempster 2012 ONSC 7236, Regional Senior Justice Heeney told an insurance company “No”. He said that it’s alright to ask for the help the law allows (compensation in the form of damages) without having to embarrass yourself by dropping your drawers to the floor. He looked at the pictures on the plaintiff’s website and decided that the photos showed her doing exactly what she said she could do and no more.

The law used to say that insurance companies and defendants couldn’t go on fishing trips; they couldn’t just rifle through your cabinets hoping to find something juicy. Mr. Justice Heeney reminded everybody of that. The law properly requires that everyone fully disclose all relevant information touching on issues in the lawsuit. The Stewart v. Kempster decision brings a little bit of balance back to the disclosure issue. It had become a Facebook feeding frenzy. Justice Heeney didn’t say that insurance companies can’t see any Facebook entries. That’s not the case. If it’s on your Facebook page and it shows you engaged in vigorous activity, a judge may order that you give a copy to the insurance copy. So remember, Facebook is still not your friend. Try writing a letter. Send your favourite person a birthday card in the mail. And don’t forget the $5 bill.

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