If you have been hurt and intend to sue, presenting such a distorted vision of your life can thoroughly dismantle your personal injury case. The central argument of most personal injury cases is that an accident has forever changed your life for the worse. If a judge were to review your Facebook profile and see nothing but happy moments of you apparently living life to the fullest, they might conclude that your claims are inflated at best, and an outright lie at the worst.
Yes, your social media profile will be considered in evidence
In personal injury cases, the person most concerned with discovering the truth of what really happened is the judge or jury. The facts of the case, however, are not as relevant to the Defendant’s legal team or the insurance adjusters assigned to your case. Their primary concern is minimizing the amount they will have to pay out to you. The number one method of doing that is to cast doubt upon your claims.
Since the rise of social media over the past two decades, a great source of refuting a Plaintiff’s claims is the Plaintiff’s own social media posts. For instance, let’s say a car accident is responsible for causing you chronic back pain that has vastly altered your quality of life. Let’s also assume that before your case goes to trial, you post pictures of yourself showing what appears to be a great time at a friend’s birthday party. Rest assured that when the case comes to trial, the Defence will use those pictures to suggest that you are lying.
Photos only show the surface. When you smile for the camera, as we so often do, there is no telling how much pain and turmoil you are going through internally. Maybe getting to that party was a herculean effort, but the pictures tell another story. More and more often, judges and jury members are taking social media posts into consideration in personal injury cases.
What about privacy settings?
Do not assume that altering privacy settings so that only family and friends can see your social media profile effectively blocks the rest of the world and allows you to say what you want with impunity. That is simply not the case. Being invisible to random visitors and search engines is not enough to protect you from a court order.
If the Defence has reason to believe that your private social media profile tells a different story than the one, you are telling, they can ask the judge to grant them access to it. This access is often limited. For instance, the Defence often gets access to photos but not comments. Too much access is still considered a breach of privacy and being able to use private comments from social media is generally seen as a violation of the right to free speech. The pictures are usually fair game.
Relevant social media & personal injury case history
In Kourtesis v. Joris , Fotini Kourtesis was injured in a serious automobile accident and made a claim for pain and suffering (including head and neck trauma, memory and concentration problems) and loss of future income. She claimed that her social life was ruined because of the accident.
During the trial, the Defendant’s lawyer saw some suspicious images on the Plaintiff’s public Facebook page and was able to convince the judge to grant additional access. Among the pictures revealed were photos of a St. Patrick’s Day party showing the Plaintiff socializing with her friends. The photos were taken after the accident, just a few months before the trial.
These pictures told a story that contradicted Kourtesis’ testimony and eventually lead to the judge summarily dismissing the pain and suffering claim.
In the case of Leduc v. Roman , the judge ruled that social media posts qualify as documents under the Ontario Rules of Civil Procedure. This ruling means that any party in a civil proceeding will have to produce all relevant social media posts when asked. It was also decided that if someone had a private profile, certain inferences could be drawn from the party’s public profile. In a nutshell, this means if the Defence sees something pertinent and suspicious on your public profile (or anybody else’s) they can ask for a Court Order to see your private content arguing that there would likely be even more to see there.
In the wake of these two cases, Defence lawyers have had mixed results accessing Plaintiff’s private social media profiles. It usually comes down to the Plaintiff’s right to privacy in the eyes of the judge. On the one hand, such privileges could help them find all the documentation they need to effectively deny a Plaintiff’s claim. On the other, they could get access to a lot of private information not relevant to the case.
Either way, it is important to note that the final decision rests with the Court as to how much weight the social media evidence is to be given. Usually, these matters are decided based on the number and frequency of the posts in question.
Social media tips for personal injury Plaintiffs
There are some easy steps to take to make sure that the Defence does not use your social media activities against you. For starters, do not post anything about the case.
For instance, suppose you made a quick post the day of the accident: “OMG! Got in a car crash. Don’t worry, though—nobody got hurt.” You go about your life only to realize too late that you have a bad case of whiplash (which can take some time to become a problem). By then you have forgotten all about your post and it fades away into obscurity. That is until you go to trial and the Defendant’s legal team uses it as evidence to have your case dismissed.
Also, never accept friend requests from someone unless you are positive you know them. Otherwise, you could end up with an investigator for the Defence poking around your profile looking to dig up dirt on you.
If you think someone might investigate you, make it hard for them. Untag yourself in photos. Not just the ones you have posted but also from any photos posted by friends and family as well. You can never be sure what seemingly innocuous moment might be used to potentially deny your claim.
Investigate other ways of sharing photos and life updates that outside parties will not have access to. Email works great for sending photos digitally, or you could go old school and make prints or even a photobook to pass around. Sure, it might seem old fashioned, and if it does, just wait until you see our next suggestion.
Consider older forms of social media for sharing status updates, and by that we mean pick up the phone. Call your friends and family occasionally and swap information about your lives. Not only is it a strangely rewarding experience, but it is also private and most likely inadmissible. Getting a Judge to grant access to your social media profile is a lot easier than getting authorization for a wiretap.
While you are talking to your friends and relations, ask them not to post anything about your case either, just in case. A thorough investigator will also look at the profiles of the people you interact with the most online to see if they have said anything that could be used against you.
We are not asking you to abstain from using social media altogether, but you need to be careful. Anything you do or say online could come back to haunt you someday, and you do not want your own actions to be the reason your claim gets denied. The simple rule of thumb is this: before you post anything, ask yourself if there is any way it can be twisted to undermine your case. If the answer is yes, even if it is only a remote possibility, do not do it. It is just not worth the risk.
Think twice before sharing
Putting the best version of your life online can be a lot of fun, but it tells a skewed tale of what your life is really like. If you are suing for personal injuries, the Defence may take the online version of your life and submit it as evidence against you.
Hire the lawyer that has your best interests at heart
If you have been hurt in an accident, you need a lawyer who is on your side and will give you the best advice in any given situation. The experienced personal injury team at Mackesy Smye has years of experience doing just that. Get the best representation possible—and the compensation you deserve. Use the link below to book a free, no-obligation consultation about your case and find out what Mackesy Smye can do for you.
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If you, or a loved one are involved in a personal injury case where social media plays a role and are looking into the possibility of filing a personal injury lawsuit, contact us today and let’s see how our team can help with your case.
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