A report released in early 2024 reported that the average adult internet user spends six hours and 40 minutes every day online.[1] The typical social media user spends just shy of two and a half hours on social media per day.[2] Though some internet and social media use can of course be beneficial – driving social connections, providing educational opportunities, fostering creativity, to name a few – they have a dark underbelly as well. Risks to vulnerable users can include identity theft, financial losses (scams), bullying, harassment and exploitation.

While these risks are not new, perhaps the exposure of vulnerable individuals to these risks are greater as a result of social media and online dating sites. One significant concern to the older population of internet users are financial scams such as romance scams, where fraudsters adopt an online persona, befriend and seduce a stranger online, and, once they’ve gained the trust of the victim, persuade the victim to send money. The Canadian Anti-Fraud Centre says that 945 victims reported having lost more than $50 million to romance scams in 2023.[3] The real numbers, including victims and losses who have not made a report, are certainly much higher.

How, or in what circumstances, can we act to prevent a loved one from falling victim to these risks?

Several UK court decisions have waded into the murky waters of capacity to use the Internet and social media.[4] The framework applied by the England and Wales Court of Protection (EWCOP) in assessing capacity to make decisions, in a nutshell, involves determining whether the individual can understand the information relevant to the decision, retain that information, use or weigh the information as part of the process of making the decision, and communicate that decision.

In the context of internet and social media use, the Court has identified the aforesaid “relevant information” as follows:

• Information and images/videos, once shared on the Internet or social media, may be shared more widely (including to unknown persons), without the original user’s knowledge or control;
• Personal settings (including privacy and location settings) on some sites and platforms may be used to limit sharing of information and images/videos (a person needn’t understand the options or mechanisms in detail, but should understand they exist and decide whether to apply them);
• Uploading and/or sharing rude or offensive (which includes explicit, indecent and pornographic) material on the Internet may upset or offend others;
• Other people online may not be who they say they are, and may not be ‘friendly’ even if they say they are a ‘friend’;
• Other people online may pose a risk to the user (including by lying to or exploiting the user whether sexually, financially, emotionally or physically) and/or want to cause the user harm;
• Viewing or sharing rude or offensive images (again, including explicit, indecent and pornographic images) may be a crime and/or lead to police involvement.

Put differently, in order to have capacity in relation to internet and social media use, the EWCOP says that a person must understand, retain, use and weigh the six preceding points in making decisions about their online activity.

The EWCOP decisions referred to above have each dealt with a young adult in his or her late teens, 20s or 30s, with some form of learning or cognitive difficulty. The potential risk or harm to the individuals in question in each of these cases appears to have focused around sexual exploitation and the safety of the individual. Some of the points referred to above (particularly around the sharing of information including images and videos) relate more strongly to this context and these particular risks than they do to many seniors and to the romance scam context. But there is overlap, particularly around recognizing whether other people online are who they say they are, and what their motives might be.

Perhaps, then, addressing this concern begins with a simple conversation:

• What type of information are you sharing online, and who can see it?
• Would you (or do you) talk to or share your information with a stranger online?
• How would you tell if the stranger was ‘good’ or ‘bad’?
• How would you know they are who they say they are, or they are otherwise telling you the truth?
• What might their motives be?

Clearly, not everyone who falls for a scam online does so because of a lack of capacity. Indeed, the presumption is that a person has capacity (absent evidence establishing a lack of capacity) and there is a distinction between unwise or naïve behaviour versus ‘incapacitous’ behaviour.

In the EWCOP cases and UK framework, education or other ‘practicable help’ should be provided to the individual with a view to enabling the individual to acquire capacity. Adopting this into our context, perhaps the conversation above opens the door to greater awareness and understanding of the risks and resources available, before one falls victim to a scam or other online misfeasance.

If, however, such a conversation (or a person’s online conduct) did rise to the level of a capacity issue, the question becomes: how can we address this. In my view, while the law hasn’t yet provided a clear answer, it’s a conversation worth having.  Should our incapacity planning documents (e.g. Powers of Attorney for Personal Care or Personal Directives) specifically deal with internet use or social media? Should they incorporate the possible solutions mentioned by the EWCOP (including supervision of Internet or social media use, filters or other “parental” controls and monitoring)? How can we balance the risk of harm to the individual while not unduly restricting the individual’s privacy and freedom? What would you want for your loved ones, if they were in the situation of not understanding who might see the information they were putting online or not understanding who they might be talking to online? What would you want for yourself?

[1] Digital 2024: Global Overview Report, 31 January 2024, Simon Kemp (https://datareportal.com/reports/digital-2024-global-overview-report).

[2] Ibid.

[3] Romance scammer reveals how he tricks women after failing to fool Go Public reporter, 5 February 2024, Erica Johnson (https://www.cbc.ca/news/canada/go-public-romance-scams-1.7088334).

[4] See Re A (Capacity: Social Media and Internet Use: Best Interests), [2019] EWCOP 2 (https://www.bailii.org/ew/cases/EWCOP/2019/2.html); Re B (Capacity: Social Media: Care and Contact), [2019] EWCOP 3 (https://www.bailii.org/ew/cases/EWCOP/2019/3.html); Re AA (Capacity: Social Media and Internet Use), [2021] EWCOP 70 (https://www.bailii.org/ew/cases/EWCOP/2021/70.html).

 

Written by Kristie Smith, Estate & Trust Consultant, Scotiatrust