FSCO arbitrator orders claimant to produce photos from private Facebook, Hi5 profiles

An Ontario arbitrator has ordered an insurance claimant to produce photographs of herself, which she posted on private portions of her Facebook and Hi5 social networking sites, to help assess her entitlement to income replacement and other statutory accident benefits.
Eniko Rakosi was injured in a motor vehicle accident on May 5, 2008. She applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company.
A dispute arose about her entitlement to benefits. State Farm requested that Rakosi produce the photos, which were posted during a two-year period between 2008 and 2010, at a pre-hearing. Rakosi refused, and State Farm brought forward a motion in arbitration to compel production of the photos.
Financial Services Commission of Ontario (FSCO) arbitrator Robert Bujold noted that the test for production is a “semblance of relevance.” In this case, he observed, Rakosi made a claim for income replacement benefits, attendant care benefits, medical benefits and the cost of various assessments, including a chronic pain assessment recommended at 1-½ years post-accident.
The application for the chronic pain assessment claims Rakosi had experienced no functional improvement in her pain condition.
The arbitrator said many of the photos State Farm requested were of “no probative value.” He also said even the photos in question might not actually determine the case in the insurer’s favour.
“However, several photographs on the Hi5 site depict Ms. Rakosi engaged in a variety of activities, including what appears to be an activity known as ‘zip-lining’ and therefore have arguable relevance to the issues in dispute,” Bujold wrote.
“Ms. Rakosi shall produce, within 30 days of the date of this decision, all photographs with her image posted to her Facebook profile (including any limited-access or private portion of her profile) for the period May 5, 2008 to May 5, 2010.”
Bujold said Rakosi had 332 friends on her Facebook site and therefore she had “no serious expectation of privacy,” given that 332 friends had seen the photos. He rejected Rakosi’s argument that inviting people to a limited-access social networking site is akin to inviting friends to see photos on the person’s bedroom wall.
“Unlike one’s home, Facebook is a virtual location that ‘users intend to take advantage of… to make personal information available to others,'” Bujold wrote. “It is a tool for social networking and sharing personal information.”
Therefore, the arbitrator concluded: “I agree with [the judge] in Murphy v. Perger that ‘any invasion of privacy [arising from production of Facebook content] is minimal.'”