An Ontario judge has denied an insurance company’s bid for access to a woman’s Facebook profile for the purpose of discovering whether she is as injured as she claims.

In its decision dated Oct. 29, 2009, the Ontario Superior Court of Justice rejected a bid by the Royal & Sun Alliance Insurance Co. of Canada for access to the Facebook account of a woman who is suing the to recover compensation for injuries she suffered in a car crash. The decision notes that Karen Schuster is claiming that her injuries have compromised her ability to work and to participate in social and recreational activities.

The insurer learned after examining Schuster that she has a Facebook account with an area only allows access to 67 ‘friends’, and it “wants access to that private area of the account in the hope that it may contain evidence that the plaintiff’s injuries have not affected her as much as she claims.”

The court noted that it has dealt with disclosure of Facebook content in two recent decisions, in which “while not granting direct access to the private area of the responding parties’ accounts, ordered production of their content for inspection… and made interim orders requiring the responding party to preserve the content until trial.”

However, in this case, it ruled that the firm “has not established a basis for a preservation order… The defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.”

“The plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 ‘friends’. She has not created her profile for the purpose of sharing it with the general public. Unless the defendant establishes a legal entitlement to such information, the plaintiff’s privacy interest in the information in her profile should be respected,” the court said.

The court dismissed the motion, but granted the firm leave to cross-examine the plaintiff on her affidavit of documents, noting, “Because Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it, I am prepared to grant the defendant leave to cross-examine the plaintiff on her affidavit if it deems it appropriate to do so. If there are documents in the plaintiff’s Facebook account that contain relevant information, she was under an obligation… to list them in her affidavit. If she omitted to do so, she is obliged … to deliver a supplementary affidavit of documents disclosing them,” the judge said.

IE