How safe is information is hidden behind an individual’s privacy settings? Can I assume that my interest in privacy ensures that anything marked “private,” or “shared only with my friends” remains so, even in the face of a production order in Canada?

In Wilder v. Munro, 2015 BCSC 1983, a defendant in a personal injury action brought before the Supreme Court of British Columbia sought an order to produce documents and records located on social media accounts maintained by a plaintiff who was claiming injuries from a motor vehicle accident.  The plaintiff described a pre-accident dream of becoming a professional dancer, and claimed that the accident negatively impacted her dancing abilities.  Although she maintained the ability to dance, she claimed to be restricted in moves and styles.

The defendants were able to obtain some information from publicly accessible content of the plaintiff’s social media accounts, but once the defendant had changed her privacy settings, they were unable to access her social media accounts and thus sought to have these documents produced. Some of the information obtained was dated (e.g., videos from 2013, 2014, and 2015, photographs and posts from 2011 and 2014), while some other information was not dated.

The Court considered several factors: the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality.  The Court distinguished the current matter from a finding in an earlier case, Cui v. Metcalfe, 2015 BCSC 1195, where limited production was ordered in relation to post-accident physical capabilities of a plaintiff.  In reviewing the factors, the Court took a careful approach in balancing whether the order for production should be made in view of the other evidence already obtained by the defendants.

The Court ultimately decided that the probative value of the documents for production would be limited as the defendants were already able to identify the dates of some of the photographs and videos that were in their possession. Adding to the collection would not be necessary to disprove the plaintiff’s claims, and even if there was sufficient probative value, the Court found that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, was not proportionate to the issues to be determined at trial.

An important takeaway from this decision is that there is no “bright line” test in relation to the privacy of information on social media networks that is hidden behind an individual’s settings. While the Canadian courts may find that an individual’s interest in privacy is greater than the probative value of the evidence (e.g., where the production order is akin to a fishing expedition), this is not always the case and documents hosted on a social media platform, even those not publicly available, can ultimately be subject to a production order.