How using social media could hurt a personal injury claim

08 Nov 2021

It might not occur to everyone that using social media could hurt a personal injury claim. However, even seemingly harmless media, like birthday wishes or posts about social outings, could compromise a claim.

A legal team may argue that content shared online contradicts the details of a claim, including the claimed suffering and/or impairment due to injury.

Use of shared social media in personal injury cases

Lawyers may scour Instagram, Facebook, Twitter and other platforms for evidence to undermine an injured victim’s claim for damages. Both public and private social media content may be admissible in court.

In a South African case, Harvey v Niland 2016 (2) SA 436 (ECG), the court ruled that even unlawfully obtained Facebook communications were admissible in a civil case.

What about privacy?

Case law in different countries is helping establish what, if any, online content is protected.

For now, it’s increasingly common for social media to form part of the documentation that each party is obliged to make available in legal cases.

In a 2018 case in the United States (Isacov v Shwartzberg, 2018 ONSC 5933), Master D. E. short noted that “…in the present technological environment there is a need to include Facebook and similar online data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents”.

During the discovery phase (when legal teams are gathering evidence), any content that a claimant has shared publicly online is likely to be fair game.

Using what they find, a legal team may then seek to access a claimant’s private social accounts. A court may award access to this content if it’s deemed likely to be material to the case at hand.

An example case: Access granted to private social accounts

Consider a personal injury case from the United States. Kathleen Romano suffered a back injury when her office chair collapsed. She instituted a claim against the chair manufacturer, Steelcase Inc. She alleged that the chair was defective. She also claimed that her injury confined her largely to her home and led to a loss of enjoyment of life. The manufacturer’s attorneys found a Facebook profile picture of Romano smiling and outside her home, along with MySpace postings featuring “smiley” emojis. The attorneys argued that the social content appeared to refute Romano’s claims. On this basis, they sought full access to Romano’s accounts. In 2010, a court granted access to private areas of Romano’s social media accounts, including deleted pages.

Why is social posting risky if a claim is valid?

It’s obvious that if someone makes a fraudulent injury claim, boasting about it online could have negative legal consequences for them. What’s less obvious is that “normal” social activity might undermine a valid claim.

An example might be images taken at a family member’s birthday party – smiling or laughing, and surrounded by others. Appearing happy or social online could be enough to undermine a personal injury claim.

Another example is posts that show you out and about, or participating in any form of activity. These might give the impression that you’re more mobile, and that your injuries are less severe, than indicated in a claim.

Do’s and don’ts: Social media use during a personal injury claim

The safest approach is to avoid using social media altogether.

If you feel you must use social media to communicate with close family and friends, follow these basic guidelines:

• Configure your account as private so only friends can access it;
• Never post anything about your personal injury claim or its progress; and
• Avoid adding anyone you don’t know as a friend (this could be someone hunting for evidence to refute your claim).

If you’re concerned about the content of existing posts, it’s best to get advice from your attorney. Usually it’s best not to delete posts (or a whole account) in case it appears that you’re trying to destroy evidence.

How DSC Attorneys can help

At DSC Attorneys, we specialise in personal injury law. Along with advice on how using social media could hurt a personal injury claim, we offer legal assistance that’s ethical and effective.

We can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve. We work on a no win, no fee basis.

See also:

• When can the police search your home or car?
• Swings & roundabouts: Where do children’s constitutional rights get off in the case of BE obo JE v MEC for Social Development?
• Three types of liability in personal injury cases
• Can you be held liable for your social media posts?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)