Updated: Jan 18
The popularity of social media platforms, such as Facebook, Instagram, Twitter and Snapchat, has continued to grow worldwide. No longer are the days when social media was only used by young adults in college. In 2019, The Pew Research Center estimated 7 out of 10 Americans utilize social media, and this number continues to steadily rise each year. It was also determined the majority of Facebook and Instagram users visit their accounts daily. It is common for a person to share their daily lives on social media, and it is no surprise this would encompass sharing information about being injured in an accident.
While social media has made it more convenient to keep up with friends and relatives, it can negatively impact your personal injury case. Many insurance companies are using social media to gain more insight on your day-to-day activities. Here is why it is important to think twice before making your next post:
INSURANCE COMPANIES GATHER SURVEILLANCE EVIDENCE
Often, insurance companies will search social media profiles to learn more about you. When insurance companies are reviewing your posts, they will look for any incriminating evidence to argue your injuries are not as serious as you have claimed in an attempt to diminish what your claim is worth. The types of posts that help the insurance companies are posts of you engaging in physical activities which would be deemed extremely difficult to perform based on the injuries you have claimed (i.e. weightlifting, running, playing sports). By exhibiting you can perform these physical activities, you will give the insurance companies ammunition to argue you are not in as much pain as you allege and that your injuries are not severe and permanent.
Insurance companies may also hire private investigators to gather surveillance to help defend against your claim. Your social media profiles may provide insight into your daily routines, and an insurance company will provide this information to a private investigator to investigate you. For example, if you post on social media that you are moving, an insurance company will try to send out a private investigator to take photographs of you lifting and carrying heavy boxes. This evidence collected by a private investigator could be used against you during settlement negotiations and even at trial.
SOCIAL MEDIA POSTS MAY BE DISCOVERABLE
If your personal injury case does not resolve in early stages, you may be faced with having to litigate. During litigation, the insurance company will hire an attorney to defend against your case. The defense attorney will serve you with discovery which will request a range of information, including your social media activity. While discovery requests need to be specifically tailored to relevant information, there are many courts allowing the discovery of social media content when it is shown the information requested is relevant to the case. The court may provide limitations on the scope and timing of the content, but the court will usually allow the production of information if it contradicts a plaintiff’s claim.
Ensuring that your social media account is set to the strictest privacy settings will help protect some of your information. Unfortunately, it does not provide absolute immunity from discovery. While attorneys are unable to access your private account without your permission, the attorney could request the court compel the production of your social media history. Rather than attempt to hide information through privacy settings, it is best practice to avoid posting during an active personal injury claim.
POSTING COULD PROVIDE IMPEACHMENT EVIDENCE
Social media provides a perfect platform for a defense attorney to find evidence which could serve to impeach you or your fact witnesses. Impeachment evidence is an attempt to show that you or your fact witnesses are not being truthful as shown by a prior contradicting statement or action. Impeachment evidence may be used during depositions and trial. While comments made by your friends or your family may appear innocent and have no bearing on your case, a defense attorney is trained to look at these comments differently and use them to attack credibility.
An example of how this would work is when your best friend tags you in a photo or comment about how fun it was to hike up to McAfee Knob. If you previously testified that you had difficulty hiking since the crash, the defense attorney will try to make you appear untruthful by using your friend’s post. Many social media platforms allow you to disable posts from third parties or request your permission to approve or deny posts prior to it being displayed on your page.
PROTECTING YOUR CASE
You might think this will not happen to you because you do would never post anything that would hurt your case. Do not fall victim to this line of thinking. When it comes to determining what posts may hurt your claim, it is best to consult your personal injury attorney. Your attorney is trained to look for anything that may potentially cause problems. It is important to discuss your social media presence with your attorney at the first consultation.
Your attorney will provide you helpful tips on how to protect your case from social media sabotage. Tips your attorney may provide include:
Do not post anything on your accounts.
Advise your friends to refrain from posting anything about you.
Change the privacy settings on your account from public to “friends only,”
Do not add new friends who you do not recognize, and
Do not post anything about your case or the accident under any circumstances.
Don’t let a post on Facebook diminish the value of your case. Our experienced attorneys are well prepared to navigate any social media pitfalls you may face. Please contact us for a free consultation at 757-454-2110 or by filling out the consultation form found here.