Defence counsel allowed to access Facebook photos for use as evidence in claim

Why should a claims department pay for surveillance when it can simply look the claimant up on Facebook?
Indeed, the Ontario Superior Court of Justice case, Murphy v. Perger, may have opened the door for insurers to use the online “social networking utility” in aid of resolving and/or dismissing a claim.
Murphy has resulted in “a strong decision for defence counsel,” as pointed out in the McInnes Cooper law firm newsletter, ‘D-Fence Bulletin,’ published in July 2008.
“It is somewhat common practice for defence counsel and insurance industry personnel to Google plaintiffs, and check Facebook and other social Internet sites for pictures or information on plaintiffs,” the McInnes Cooper bulletin notes. “The fruits of this labour have begun to appear in court and a body of case law has started to develop.”
Murphy involved a pre-trial motion by the defendant in a motor vehicle case for copies of Web pages and photographs from the Facebook page ‘Jill Murphy Fan Club.’
The site was created by the plaintiff’s sister and controlled by the plaintiff. The defendant had accessed photos of the plaintiff on the public portion of the site and requested the court to grant access to pictures posted on a private portion of the site.
The defendant said it was entitled to access the private photos because the photos were:
not similar to surveillance (in the sense that the party was aware of them);
highly relevant to the claim;
related to the issue of assessing damages; and
not prejudicial to the plaintiff, who could be recalled to explain the context of the photos.
The plaintiff resisted the motion, arguing:
the defendant was on a fishing expedition;
the photos were “tagged” and hence their presence on the site could not be controlled by the plaintiff;
withholding access to the private site did not prejudice the defendant, because the defendant could always access the public portion of the site; and
the request was made too close to trial (four weeks).
Ultimately, Ontario Superior Court Justice Helen Rady sided with the defendant, finding, among other things, that the photos would be highly relevant to the case.
“It is possible that the document sought in this case might be used by the defendant in order to impeach the plaintiff’s credibility regarding the impact of the accident on her life, depending on what her evidence will be at trial and what the photographs depict,” Rady ruled. “However, it cannot be said this is the sole purpose. The photographs might also be useful to assess the value of Ms. Murphy’s claim for damages.”
McInnes Cooper notes there may be some limits to Murphy’s application, based on the facts of the case. For example, in Murphy, the plaintiff herself relied on photographic evidence, and a claim for “loss of enjoyment of life” was a central argument in her case.