The Use of Social Media in Personal Injury Litigation – What Our Clients Need to Know
It likely started with Friendster – we then moved on to Myspace. Now we have Facebook, Instagram, Twitter, Snapchat, Pinterest, Tumblr, LinkedIn and YouTube. There are many others, and there is no doubt there will continue to be more in the future.
You would be hard-pressed to find a person under the age of 30 who does not participate, in some way, in at least one form of social media. Many “post” to social media everyday – some infrequently. Some post the most trivial details of their lives and others speak only in general terms. How people use social media is as varied as the platforms themselves.
One thing is common amongst all of the social media platforms – people have a way to share, what was once relatively private information, for the entire world to see. Many choose to do so, perhaps in the misguided belief that what they post can only be seen by “friends”. They may post photos or comments in the mistaken belief that the posts are not permanent (Snapchat makes this claim). Regardless of why people choose to post their lives on the internet, the fact is that people are doing it more and more.
One would hope that people are now starting to realize that, regardless of privacy settings, and regardless of the social media platform used, if someone wants to get at their information, they will find a way. There is no such thing as real privacy on the internet. There is also no such thing as “deleting” something from the internet. Once the information is posted, it is there forever. Someone will always be able to find a copy of the photo or post. One need only look at all of the scandals that have occurred because of posts to social media (even deleted emails from servers
that were wiped clean) to understand that there is little someone can do to keep what they post on the internet limited to a circle of friends whom they choose.
In simple terms, anything posted to the internet could be viewed by anyone in the world. For the most part, no harm ever comes of this. People post billions of times a day and most of the world simply does not care. However, personal injury litigation gives people a reason to care. Anything our clients have ever posted online can find its way into the hands of the defence lawyer and the insurance company. It can be used as evidence against them.
It is common-place for defence lawyers to ask about social media at the examination for discovery. The defence lawyer will ask for every platform our clients belong to and
request all of their usernames. Some will even ask for passwords, which no lawyer in our office would ever agree to. Some defence lawyers ask that whatever platform our clients belong to be preserved. Some defence lawyers ask for production of the contents of an entire platform (for example, production of a client’s entire Facebook page).
Defence lawyers can learn a lot about a plaintiff based on what they post. They will see pictures of the individuals and their friends. They will see comments. They can learn the plaintiff’s likes and dislikes and what activities they choose to participate in. They can cyber-spy on a good portion of their lives. Most of this can be done without their consent.
While the law is not as clear as this, our clients ought to assume that anything they have ever put online will find its way into the hands of a defence lawyer. Photos taken after an injury where they appear happy and healthy represent only a snapshot in time, but may portray a different image to a Jury. While many take no photos (or at least do not post them) of times where they were suffering, there seem to be an inordinate number of photos of people functioning well.
We are not suggesting that people stop using social media because they might become injured. We are also not suggesting that our clients stop using social media, and we
are certainly not suggesting that our clients delete anything that they have posted. We are simply suggesting that some thought go into what gets posted.
There is a good rule of thumb taught to lawyers when considering the contents of a letter to another lawyer. To determine whether or not the letter contains language that may be unprofessional, imagine what might happen if the letter was put before a Judge. If the writer could not explain the contents of the letter to the Judge, he or she ought to change the contents.
A similar piece of advice would work for social media postings. If our clients would be the least bit embarrassed if a posting or photo was to appear on the cover of a major newspaper, do not write the post or upload the photo. Our clients ought to assume that what is put online is free for the world to see. If clients do that, they will greatly reduce the chance that anything a defence lawyer might find online can harm them.
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