Social media in litigation: The digital reality of modern evidence

In today’s hyper-connected world, where technology intertwines seamlessly with daily life, social media and digital devices have profoundly changed the way we communicate, document our lives, and interact with the world. Social media platforms like Facebook, Instagram, Twitter, and TikTok have evolved beyond entertainment hubs into vast repositories of personal and professional information. Adding to this digital footprint, fitness devices like Fitbit and Apple Watch, as well as location-sharing apps, continuously log data such as movement patterns, health metrics, and geographic activity. While these tools enhance convenience and connectivity, they also introduce unique challenges and opportunities within the legal arena.

Every post, photo, step count, heart rate log, and location ping creates a digital narrative—and this narrative has become a vital resource for legal professionals. In modern litigation, digital evidence drawn from social media, fitness devices, and location-sharing apps can corroborate or undermine claims. Given that over 94% of Canadians actively use social media^[1], the opportunities for uncovering critical evidence are immense. Lawyers must now be equipped to identify, preserve, and strategically use this information to ensure no digital clue is overlooked in the pursuit of justice.

To disclose or not to disclose: Balancing privacy and relevance

To date, courts and tribunals have, among other things, ordered the preservation and production of entire social media accounts and have considered social media evidence against claims of the loss of enjoyment of life and the inability to work.

However, courts are not inclined to permit “fishing expeditions” through an individual’s digital life. As established in case law and the Civil Procedure Act, the party seeking disclosure must demonstrate that the requested content is both relevant and proportional to the issues at stake. Courts carefully balance privacy rights with the need for relevant evidence, often imposing strict conditions to ensure that disclosure remains focused and justified.

Privacy settings aren’t a get-out-of-discovery-free card: Privacy settings won’t save you

Picture this: A plaintiff files a lawsuit claiming debilitating injuries from a car accident, insisting they can no longer participate in the activities they once loved. Their case hinges on the extent of their physical limitations and emotional suffering. Yet, on their private social media account, there are photos of them smiling atop a mountain after a weekend hike or videos of them dancing at a family celebration. While the plaintiff may believe their privacy settings shield these posts from scrutiny, this is a common misconception.

Under Rule 30.02 of the Rules of Civil Procedure, there is a general obligation to disclose potentially relevant social media content, whether a profile is marked “public” or “private.” Rule 30.02(1) clearly states that “every document relating to any matter in issue in an action that is or has been in the possession, control, or power of a party” must be produced if it is relevant to the case.

While this obligation provides a framework for disclosing relevant content, it also raises questions about the limits of privacy protections and the consequences of failing to preserve such evidence. Courts have grappled with these issues in numerous cases, balancing the need for probative evidence against privacy interests and the risks associated with deleted or missing social media content.

The courts have consistently reinforced that privacy settings do not create an absolute barrier to disclosure. Like any other nonpublic document, private social media content must be treated as evidence if it holds material relevance to the issues being litigated.

This principle was well-established in Leduc v. Roman (2009), where the Ontario Superior Court held that Facebook postings are documents under the Rules of Civil Procedure and must be disclosed if relevant. The court inferred that the presence of content on a public Facebook profile reasonably suggests similar content exists on the private profile.  The Ontario Superior Court of Justice made an order permitting the defendant to cross-examine the plaintiff on his Supplementary Affidavit of Documents regarding the kind of content he posted on his private Facebook profile.

Similarly, in Frangione v. Vandongen (2010), the court noted that public Facebook posts allowed for a reasonable inference that private posts would likely contain relevant material.

Game of balances: Privacy, relevance, and social media disclosure

Nevertheless, these two cases were decided before the 2010 amendments to the Rules of Civil Procedure. Pursuant to Rule 29.2.03(1) ^[2], the rule requires that when determining whether evidence should be produced in a proceeding, the court must consider proportionality. Specifically, the relevance of the evidence is weighed against factors such as the time, cost, and prejudice of production. The rule ensures that disclosure requests are not overly broad or intrusive, balancing the need for evidence with fairness and efficiency in the litigation process.

Following these changes to the Rules, the mere existence of a Facebook profile does not automatically entitle a moving party access to the material on the profile, and the inference of relevance is not necessarily made. 

In Schuster v. Royal & Sun Alliance Insurance Co. of Canada^[3], the court cautioned that the mere existence of a Facebook profile does not automatically mean it contains relevant evidence. Instead, relevance must be determined based on the available public content and the issues in dispute.

Courts have also considered privacy interests when determining the scope of disclosure. In Ottenhof v. Kingston Police Services Board^[4], the defendants sought access to all private Facebook content, but the court ruled such an order would be overly intrusive unless the plaintiff’s claimed disability directly impacted their ability to use social media. Similarly, in Stewart v. Kempster[5], the court acknowledged the plaintiff’s strong privacy interest, noting that allowing only 139 friends to view her private content reflected a legitimate expectation of privacy. In Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance^[6], Justice Healy cited the following, denying the Defendant’s motion for Snapchat messages -

“These are not Facebook messages or pictures that have been shared with other individuals in the past, which distinguishes this case from others in which disclosure has been ordered. They are messages sent between two partners that carry an extremely high expectation of privacy, on platforms or applications that are designed to be private. In fact, Snapchat is designed so that the content disappears after a set period. In considering whether to produce the messages, this expectation of privacy must be borne in mind.”

While privacy is a significant consideration, it cannot be used as a shield to avoid disclosure of relevant evidence. Courts have taken a pragmatic approach to striking this balance. In Mohamud v. Juskey^[7], Justice Boswell weighed the probative value of the records sought against the potential prejudice and privacy intrusion. The court agreed that private social media accounts likely contained post-accident photographs relevant to the litigation but refused to grant a blanket request for all content. Instead, Ms. Mohamud was ordered to produce a list of photographs relevant to the issues in the proceeding, carefully limiting the scope of production.

While social media content can provide valuable insight, courts remain cautious to avoid unnecessary invasions of privacy.

Delete at your peril: Evidence never dies

However, the issue becomes even more complex when social media content disappears—whether intentionally deleted or due to platform policies. This raises serious questions about spoliation and how courts handle missing evidence. Spoliation refers to the intentional destruction or alteration of evidence, and courts have shown little tolerance for such conduct. For example, in Terry v. Mullowney, the plaintiff deleted their Facebook account after being confronted with its contents. The court drew an adverse inference, concluding that the missing evidence would have damaged the plaintiff’s case.

Plaintiffs and defendants alike must understand that deleting content or relying on privacy settings will not necessarily prevent the disclosure of relevant material.

Navigating third-party disclosure

As courts grapple with the scope of social media disclosure, obtaining third-party access to user data adds another layer of complexity.

Social media platforms like Meta (Facebook and Instagram) and X (formerly Twitter) are increasingly asked to produce user data for use in legal proceedings. However, these requests are not without challenges. Stringent privacy laws, including Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) and the U.S. Stored Communications Act, place significant restrictions on the release of personal data. Even with court orders in hand, platforms often push back to protect user privacy and adhere to their internal policies.

Crafting effective requests

For lawyers seeking disclosure, the key to success lies in drafting clear, targeted, and narrowly tailored requests. Courts are generally unwilling to compel third-party disclosure when requests are overly broad or vague. For instance, asking for “any and all communications” will likely be rejected, while a request for “photos posted within the last six months showing physical activities” stands a greater chance of approval.

International challenges

Requests for social media content in cross-border litigation are further complicated by jurisdictional differences in privacy laws. Lawyers must often collaborate with foreign counsel or leverage Mutual Legal Assistance Treaties (MLATs) to facilitate disclosure. For example, the European Union’s General Data Protection Regulation (GDPR) imposes strict controls on transferring personal data outside the EU, which can cause delays or even barriers to obtaining critical evidence. Successfully navigating these challenges requires strategic planning and a thorough understanding of global privacy frameworks.

Norwich Orders: A legal tool for pre-discovery disclosure

In situations where conventional requests face resistance, Norwich Orders provide an effective legal remedy for obtaining third-party disclosure when conventional methods fail. In York University v. Bell Canada Enterprises, the Court of Appeal established key criteria for granting a Norwich Order: the applicant must show a valid claim, the involvement of the third party, the practicality of obtaining the information from that source, cost indemnification, and that the interests of justice outweigh privacy concerns.

If a Norwich Order is unavailable or inappropriate, counsel can rely on Rules 30.10 and 30.11 of Ontario’s Rules of Civil Procedure. These rules allow for the discovery of non-parties with leave of the court. To succeed, the applicant must prove the evidence sought is relevant, necessary, and proportional to the case's scope and needs. Together, these tools ensure courts can balance the search for truth with privacy protections, facilitating access to crucial third-party evidence when needed.

Broader legal implications and the power of metadata

The inclusion of social media evidence in discovery extends well beyond personal injury cases and now permeates a wide range of litigation contexts. Social media content can provide key insights into corporate disputes by revealing internal communications, operational activities, or breaches of confidentiality agreements. Posts and messages shared publicly or privately often surface critical information that can shape the outcome of disputes and uncover misconduct.

Defamation claims frequently rely on social media platforms to establish harm, intent, or reputational damage. In Windsor-Essex Catholic District School Board v. Lentini^[8], a parent’s defamatory Facebook posts—including digitally altered images—resulted in significant liability. These cases underscore the substantial legal weight assigned to social media content, particularly when such evidence exposes malicious intent or causes emotional or reputational harm.

The rise of influencers and brand collaborations on platforms like Instagram, TikTok, and YouTube has further complicated commercial litigation. Contracts governing influencer partnerships typically specify deliverables, content guidelines, and performance expectations. However, disputes often arise when influencers or brands deviate from these terms, fail to disclose sponsorships, or publish content that damages a company’s reputation. The casual tone of captions, videos, and comments can mask their legal significance, yet courts are increasingly tasked with evaluating these materials. Metadata, including timestamps and edits, can prove invaluable in demonstrating compliance, intent, or breaches of contractual obligations.

Social media evidence has also become a focal point in family law disputes, such as custody, access, and divorce proceedings. In Waters v. Waters^[9], both parties relied heavily on social media content to advance their arguments. Posts, photos, and messages can reveal lifestyle choices, financial stability, and parenting capabilities, directly influencing judicial decisions.

Ethical considerations in collecting social media evidence

As social media continues to play an increasingly critical role in modern litigation, its potential as a tool for uncovering evidence is undeniable. However, this powerful resource comes with significant ethical responsibilities that legal professionals cannot ignore. The line between legitimate investigation and unethical conduct can be thin, and crossing it can have serious consequences for both the case and the lawyer's professional reputation. Understanding the boundaries and obligations when collecting social media evidence is essential to navigating this evolving landscape.

Lawyers must navigate a variety of ethical obligations when gathering social media evidence, as outlined in the Rules of Professional Conduct. While collecting publicly available information from social media through simple searches is generally unproblematic, ethical concerns arise when lawyers attempt to access private or restricted accounts. For example, creating fake profiles to circumvent privacy settings or gain access to an individual’s personal information is a clear breach of professional duties and the obligation to act in good faith. Such deceptive tactics not only risk undermining the lawyer’s credibility but can also harm the integrity of the case.

Additional concerns arise when a lawyer attempts to “friend” or otherwise contact an opposing party through social media. If the opposing party is represented, such actions constitute direct communication, which is prohibited under the Rules of Professional Conduct. Lawyers must exercise caution and ensure their investigative strategies comply with professional standards, avoiding any conduct that could be deemed unethical or improper.

The key to ethically gathering social media evidence lies in transparency and adherence to professional obligations. Lawyers must remain vigilant about these boundaries, balancing the need for thorough investigation with their duty to act with integrity, respect, and fairness. Courts and regulatory bodies are increasingly attuned to these concerns, reinforcing the importance of ethical conduct in this rapidly evolving digital landscape.

Embracing the digital reality of litigation

Social media has become an integral part of modern litigation, offering unparalleled access to personal information that can make or break a case. However, its use requires careful navigation of privacy concerns, evidentiary rules, and ethical obligations. By understanding the nuances of social media disclosure, lawyers can anticipate challenges, craft effective strategies, and advocate more effectively for their clients.

The evolution of social media platforms and the growing complexity of digital communication will continue to shape the legal landscape. As courts refine the rules governing social media evidence, the ability to adapt to new precedents and technologies will remain a cornerstone of effective litigation. Ultimately, what happens online no longer stays online—a reality that lawyers and clients must embrace to succeed in the digital age.