Facebook – the insurer’s new friend02 April 2009 Topics: Insurance
It is not often we report on international court decisions, but this Canadian Superior Court of Justice decision has created a lot of interest among insurance litigators. It further pushes the boundaries of the disclosure obligations of a claimant, although the result is perhaps hardly a surprising one.
As the decision notes, popular culture has embraced Facebook (and many other social networking websites) as a means by which to reveal one’s personal life to others. The injured claimant, Mr Leduc had chosen to do just that, although he had opted for a privacy setting which limited the content on his Facebook profile to only those who he accepted as his “friends”. The defendant, Mrs Roman and her insurer were unlikely to fall into that category. When the insurer became aware of the existence of the site (through a reference in a medical report) it sought and obtained an order not only that Mr Leduc preserve any relevant material on his Facebook profile but produce a copy of such relevant material to the insurer. It was not seen to be a “fishing expedition” as suggested by the claimant’s legal team.
Whilst the decision falls outside our jurisdiction and creates no binding precedent for Queensland courts, the result it is submitted would be no different here. It is unquestionably the case that information on a claimant’s Facebook profile which touches upon their injuries, the circumstances of the accident or their ability to engage in work or social activities will be relevant to a claim if a claimant puts such matters into issue. It is also unquestionably the case that material posted on the website (by way of photographs, a blog or otherwise) will constitute a “document” as that term is broadly defined in section 36 of the Acts Interpretation Act 1954. The requirement for production of a written copy of the Facebook profile is reinforced by Section 32E of that Act.
For those who act for claimants, the court rightly points out that it is now incumbent on you to explain to your clients in appropriate cases that documents posted on your client’s Facebook (or other such site) may be relevant to allegations in the claim and therefore discloseable.
For those of you who act for insurers, it’s time to start searching for Facebook profiles and, if necessary, seeking orders for production of any material protected by a privacy setting. The insurer should not however seek acceptance as a “friend” in order to access the claimant’s entire profile as to do so probably constitutes unethical behaviour particularly where a claimant is legally represented.