We all want to share details about our lives on Facebook, and we certainly want to let people know when we have a major injury. But if you are filing a personal injury lawsuit, social media becomes a tool which will always hurt and never help your case. By realizing how social media can impact your ability to receive fair compensation, you should understand that it is important to share your social media habits with your lawyer during such a suit and develop new habits which may entail staying off of social media completely.
Reading Things the Wrong Way
As The Guardian reports, insurers “have added social media to their quiver of methods to spot fraudsters”. In one instance, a postman claimed he could not walk unaided after a workplace accident, only for pictures on a personal blog to emerge showing him performing at a Malaysian music festival. He was jailed for 18 months on two counts of fraud.
Catching actual fraudsters is certainly a good thing, but the problem is that we all put our best foot forward posting on Facebook. We do not want people knowing that we can barely walk or dress after an injury, but would rather show that we are persevering and will get through this difficult time. We want to show that we are happy, not lonely and depressed.
But if you are trying to show that an injury has negatively affected your quality of life, those positive Facebook posts can hurt your case. If insurers get their hands on such posts, they will use them in the worst light possible to persuade a judge or juror that you are yet another fraudster. This is especially true if you are trying to claim emotional distress from an accident. Since emotional distress is harder to prove than physical damages, insurers will scour your profile for any posts which claim that you are happy.
Legality and Privacy
Some clients will argue that all of this is illegal, and that insurers have no right to scour their social media profiles for information which puts them in the worst possible light. But this is not true. Any personal injury lawyer can tell you that in civil cases, courts allow very broad parameters for discovery, which allows disclosure of anything reasonably calculated to lead to evidence. It is perfectly legal for insurers to scour your profile, just like they could if you were applying for a job.
Furthermore, setting your accounts to private may not help you either. A judge can order you to share all relevant data if it is relevant to the case, and an attorney can gain access to your private account if you unwittingly friend a relevant party. Going private can provide you a certain level of protection, as judges will frown on “fishing” trips where an attorney demands the right to go through your private account in the hope of finding something. But you should not assume that will be good enough.
In summation, posting even seemingly innocuous things on social media can be twisted to make you look like the villain in a personal injury case and can potentially cost you the case. Much of this is legal, and even going private only offers limited protection at best.
What to Do
Given these facts, you may think that it may be safer to delete your social media profile entirely. But the American Bar Association states that lawyers are not allowed to advise clients “to delete/destroy relevant photos, links, texts, or other content, so that it no longer exists”. Such an action can cause judges and jurors to be more suspicious as they think you have something to hide, and can in fact be a criminal action. And with new forensic techniques, little is ever permanently deleted from the Internet or social media.
So what should you be doing instead? The simplest thing to do is to stop posting altogether. Just like not talking to the police will never hurt your criminal case, not posting on social media will never hurt your personal injury case.
If you do intend to post, carefully scrutinize what you post. Avoid talking about winning a personal injury settlement or giving updates to your recovery status, as that can be construed to contradict what is being said in the courtroom. Never post pictures or videos doing social or physical activities. Even if you are straining to get around, that will not be apparent in any photograph. And never, ever, ever make ridiculous jokes or sarcastic statements about any of the above topics, as a judge or attorney will often take such remarks at face value. If you are uncertain about a certain post, either discuss with your lawyer about whether it will be appropriate or do not post it.
Also remember that insurers may also check your friends and family’s accounts on top of yours for incriminating information. Tell them that you may be posting less to protect your privacy so they are not worried. Discuss the above guidelines with them, and ask them to run anything by you before they post or tag anything relating to you or your injury on social media.
These guidelines may seem restrictive and unnecessary at first. But in fact, a personal injury case should teach you why it is important to protect your privacy, and serve as an opportunity to practice better social media habits. A silly Facebook post should not prevent you from getting the compensation and care that you deserve.