There is little question of the huge impact that the Internet and social media have had on society. It’s changed the way people communicate and socialize. It impacts everything from elections to business.
As of the second quarter of 2018, Facebook had 2.23 billion users. Nearly one-third of the population of the world uses the platform to shares photos, videos, content, news, memes and happenings with friends and loved ones. For many, using platforms like Facebook, Twitter, Instagram have become second nature. But for those involved in a prolonged personal injury lawsuit, social media posts can have serious financial repercussions.
Case in point: in 2015, a B.C. woman had her claim for hundreds of thousands of dollars denied in part due to evidence from her Facebook page portraying her acting “completely inconsistent” with someone suffering physical trauma, the ruling B.C. Supreme Court judge said.
No assumption of privacy
As the adage goes: everything posted online is there forever. Increasingly, the assumption of privacy around what’s been posted is also proving false.
“Essentially, privacy is out the window,” says Gary Mazin, president of personal injury law firm Mazin & Associates PC. “If it is being posted, it’s increasingly being treated as accessible, even when it’s personal or relatively private.”
Using a platform’s settings to make a post more private doesn’t eliminate this challenge. Lawyers representing the insurance firm can use other public comments and posts to open the door to request for more privately shared subject matter.
Social media -- Helping insurance claim investigators
A common practice of insurance firms disputing personal injury claims is to have investigators to surveil claimants in an attempt to collect evidence that compromises their case. In the modern era of social media, collecting this material has only become easier.
“Traditional surveillance still happens, and it can be troubling” Mazin says. “We’re talking about unknown people behind trees and in bushes in the night.”
“As sad as that is, it happens normally. But now equally normal is them going to social media and having the victim do their work for them.”
Additionally, in a practice becoming more common, a random friend request may in fact be an attempt by investigators to circumvent privacy settings and gain greater access.
Putting on a brave face can hurt a personal injury claim
For many injury victims — especially those with limited mobility or psychological trauma confining them to the home — cutting social media could be overwhelming. Social media might be their primary connection with the outside world.
Unfortunately, the unique dynamic of social media behaviour has a negative impact on personal injury cases. Users of social media platforms typically present themselves in a positive light. This well-curated snapshot of lives skews perceptions outside the courtroom and is especially damning inside it.
Mazin points to the recent example of a client who suffers horrible migraines from a head injury due to a car accident. Her husband took her to a casino to cheer her up for her birthday. Heavily medicated and putting on a brave face, she celebrated her day. The resulting photo would become the linchpin of the insurance company’s defense, sitting prominently for the jury to see every day.
Social media tips advice for injury victims
A few best practices can help to insulate victims against having their social media accounts and activity used against them.
- Shut it down – The best piece of advice is to completely close the social media account completely and not use it for the duration of the trial, which with appeals could be years.
- Double check –Once the account is closed, have a friend verify the user no longer exists.
- If you must, limit use – If the social media account cannot be shut down, limit all use and post as rarely as possible.
- Lock it down – Users should make their privacy settings as strict as possible and refuse friend requests from strangers.
- Watch for tags – Even when not involved in an activity, friends or family can ‘tag’ users in their posts. Such posts can still be used as evidence.
Weighing the pros and cons
For some injury victims, social media is a necessary evil. Devastated by injuries and ready to give up, social media may be their sole outlet and means to socialize. At the same time, the unfavourable evidence it creates can completely derail their legal efforts.
For insurance companies, the use of social media is cost-effective, quick and easy, prompting them to become even more litigious. What might have once taken months of surveillance may now take as little as five minutes.
While psychology or psychiatric experts may be called on in the future to help explain away some of the damage from social media posts, that is not currently the case, and post-accident photos or ‘tags’ are never beneficial.
It all behoves injured parties to pay greater attention than they have been to their online presence.
“Be more cognizant,” Mazin says. “Before you do anything, ask yourself: ‘would I want the insurance company knowing I’m doing this’? It always applied. The difference is, in the tech age, it’s more likely they will.”