A few years ago I discussed litigants spying on themselves through the use of social media. Reasons for judgement were released this week by the BC Court of Appeal demonstrating this reality in action.
In this week’s case (Bialkowski v. Banfield) the Plaintiff was involved in a 2007 motor vehicle collision. He claimed significant damages and proceeded to trial. Although there was medical evidence in support of his claim a jury outright rejected it and awarded $0 in damages.
The Plaintiff appealed arguing that such a verdict was “not open to the jury on the evidence“. The BC Court of Appeal disagreed finding that credibility was a live issue and surveillance and even You-Tube evidence was introduced which could have explained the Jury’s rejection of the medical evidence. In dismissing the appeal the Court provided the following reasons:
 A major thrust of the respondent’s case was an attack on the credibility of the appellant. Evidence was adduced of long-term, pre-existing medical issues and personal difficulties the appellant had been obliged to face over the years. The surveillance video showed him undertaking physical activities that were not compatible with his claimed injuries. It was supplemented by YouTube videos to the same effect.
 The appellant presented evidence that he has medical difficulties, both physical and mental. The difficulty is that the appellant was obliged to satisfy the jury that the injuries were caused by the accident. There was evidence that these difficulties were more severe manifestations of pre-existing problems. Although he presented a potentially persuasive case that he was injured as a result of the accident, the jury did not accept it. The respondent mounted an apparently successful, serious attack on the appellant’s case aimed extensively at his credibility.
 I have reviewed the litany of medical evidence as canvassed by the parties. A trier of fact could have concluded that the accident caused compensable injury to the appellant, but it certainly was open to the jury to conclude otherwise. In my view, there was evidence on which the jury rationally could reach its verdict. I do not think there is a basis in this case for this Court to interfere with the weight given by the jury to the evidence overall.
 I would dismiss this appeal.
(Update: The below decision was upheld by the BC Court of Appeal in December, 2011)
As I’ve previously written, the BC Privacy Act allows individuals to sue where their privacy is violated “wilfully and without a claim of right” by another person. This powerful law permits such lawsuits to succeed even where a Plaintiff cannot prove actual damages.
Despite the strength of the BC Privacy Act, relatively few reported decisions have been released applying this law in the years that it has been on the books. Useful reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying this law in combination with a claim for damages for defamation.
In today’s case (Nesbitt v. Neufeld) the Plaintiff and Defendant were involved in “protracted family litigation” During the course of that litigation one of the parties “resorted to out-of-court publications that are plainly private to the litigants“. The reasons for judgement are worth reviewing in full for the details but these apparently included “private communications…released to third parties and made available to the public (including)…a YouTube video…a website…a Facebook Page…(and) a letter to the Ministry of Child and Family Development”
The victim sued arguing she was defamed and further that her privacy rights were unreasonably violated. Mr. Justice Crawford agreed and awarded the Plaintiff $40,000 in damages. In reaching this award the Court provided the following reasons:
 The B.C. Court of Appeal in Davis v. McArthur (1970), 17 D.L.R. (3d) 760,  B.C.J. No. 664 (QL) (C.A.), said this in the course of its judgment at para. 9 of QL:
To constitute the tort [of violation of privacy] the violation must be committed “wilfully and without a claim of right”. The nature and degree of privacy to which the person is entitled in any situation or in relation to any matter is fully set out in s-s (2) [now ss. 1(2) and 1(3)] and, in my opinion, no useful purpose would be served in attempting to elaborate upon the words contained therein. Regard must be had to the provisions of the subsection as a whole. It is plain that whether there has been a violation of privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment [10 D.L.R. (3d) 250 at p. 255, 72 W.W.R. 69]: “It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2) [now ss. 1(2) and 1(3)].
 In Hollinsworth v. BCTV, a division of Westcom T.V. Group Ltd. (1999), 59 B.C.L.R. (3d) 121, 113 B.C.A.C. 304, the Court of Appeal defined the term “wilfully” to mean “an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person” (at para. 29 of B.C.L.R.).
 Dr. Nesbitt’s use of the private correspondence between Ms. Neufeld and Ms. X was a deliberate act that violated Ms. Neufeld’s privacy. The communications were extremely personal…
 Had Dr. Nesbitt restricted his communications within the confines of the family court litigation where he had counsel to advise him of the bounds of legitimate expression of his opinions, the issues before me in this proceeding might not have arisen. I say “might” because I note that certain publications of Dr. Nesbitt prompted an application to the family court that resulted in a consent order made on September 8, 2008 before Master Caldwell restraining Dr. Nesbitt from making further improper communications…
 The reality is that Dr. Nesbitt has taken his battle with Ms. Neufeld over custody and access far outside the ordinary confines of the family court litigation. Even worse his lack of appreciation for the proper boundaries of communication of his opinions has spread to besmirch persons that are friends of Ms. Neufeld.
 Dr. Nesbitt disclosed matters private to the parties in a manner that defamed Ms. Neufeld; he is the publisher of the defamatory materials at issue.
 For breach of privacy and the defamation aspects of the defendant’s claim, I set that amount at $40,000.
 I only limit the defamation damages due to the fact that while it is plainly publication to the world in the sense the defamatory materials were put on the Internet, Ms. Neufeld indicated there has been little personal or professional backlash. Indeed, if I read between the lines, the communications to the Rotary Club, the Ministry and the Child’s doctor were treated with the disdain they deserved.
The Court went on to award the victim ‘special costs’ in order to rebuke the other parties ‘reprehensible conduct‘. The ease created by social media platforms in allowing individuals to quickly publish material to the Internet will likely make claims such as these more prevalent in the years to come. With this, damage awards for privacy violations will hopefully be shaped into predictable ranges.
It’s a not so well-kept secret that Insurance Companies often hire private investigators to conduct video surveillance of people involved in personal injury claims. Sometimes the efforts pay off in uncovering a fraudulent claim. More often than not hours of bland video are produced doing little more than intruding on the privacy of an injured plaintiff.
These days, however, private investigators may play less of a role as many Plaintiffs are doing the surveillance work themselves. That’s right, Plaintiffs spy on themselves and hand the goods right over to the Insurance Company.
I’m talking about the liberal use of social media, specifically YouTube. When you or a friend make a film and post it on YouTube chances are the video will be of better quality and give more intimate access to your life than anything a Private Investigator can put together. PI’s often film from the bushes, a van or other less than ideal locations. The videos produced are often grainy, distant and of poor quality. Most videos uploaded to YouTube, on the other hand, are up close and personal. These videos can give a lot of insight into a person’s life.
Whether or not these videos are damaging to your claim insurance companies are viewing them. This information can either be directly used against you or will give the insurance company further avenues to pursue in trying to damage your personal injury claim.
The reality is that insurance companies are effectively using social media and uncovering a gold-mine of useful information in the process. As I’ve previously written, the mere mention of ICBC on twitter will immediately bring you to their attention. If you’re using social media be aware that your audience is bigger than you intend.