Just about everybody uses social media these days. People go on Facebook, Instagram, or their favorite platform to check in on what their family and friends are doing, read up on the latest news and share updates about what is going on in their lives. Since the advent of social media, users have had the ability to share in depth information about themselves to those within their network.
It is always advisable to be cautious about what you post on social media as it can be seen by hundreds of people within your network. In addition, if a post goes “viral” and is shared multiple times, or even one time, there could be thousands or even tens of thousands of eyeballs on it.
This may not be that big a deal under normal circumstances, and you may not mind if the whole world reads your posts. But when you are involved in a personal injury claim, you will need to tread much more carefully. Things you say and images and videos you post on social media can be used against you in a personal injury case, and your online activity could cause you to lose out on some or all of the compensation you deserve.
How social media activity might be used against you
Imagine you got seriously injured in a car accident. Your neck, shoulder and back injuries are bad, you can barely walk for a while, and you can barely lift anything up. You claim damages for your direct monetary losses – medical bills and lost earnings – and also for noneconomic losses such as physical and emotional pain-and-suffering and loss of enjoyment. You assert that your injury has resulted in several bouts of depression, and you are feeling isolated because it is much harder to move around for extended periods and you are forced to spend most of your time at home.
Your case seems pretty strong, except for one problem – your social media posts seem to contradict your claims that you are suffering and that your quality of life has been diminished. You are pictured on vacation at the beach smiling, or having drinks with your friends. Or worse, you are shown jet skiing, riding an ATV or participating in some other type of physical activity.
We all try to put a rosy picture of our lives on social media. Those posts often do not represent reality. Your posts smiling at the beach may not reflect that for most of the time on your vacation, you were forced to lay on a lounge chair instead of being able to body surf the waves. That picture of you on the ATV implies that you went on a grand off road excursion, when in fact, you were only able to ride on flat ground in a parking lot or on a field for only a few minutes. The photo of you on a jet ski will not show you laid up for two days after trying something that you have always wanted to try. Those drinks with friends do not show that you left early, or that you needed to have someone drive you home because you drank one too many to try to dull the pain. But a picture is worth a thousand words, and may be all the defendants, and potentially a jury, will believe.
In addition to all of that, you generally try to have an optimistic outlook on life, and you don’t want people to worry about you. So, you post several status updates throughout your recovery reassuring those closest to you that you are feeling better and that you’re going to get through this just fine. You end up saying you are “fine” when you are not really fine.
Do you see the problem here? Do you see how your social media activity might damage your claim? This is not just theory; there are numerous actual cases dating all the way back to the early days of the internet in which a defendant used a plaintiff’s social media activity to discredit their claim.
You cannot live your life centered around a personal injury lawsuit and secluding yourself in the house all the time, as that can be a terrible way to live. Depending on the severity of your injury, you may be able to participate in some activity after a period of time, even encouraged to do so by your doctor as part of your physical rehabilitation. Talk to your medical providers about what you should and should not be doing, and follow their advice. However, when you do activities like the above without the advice of your doctor or physical therapist, you risk the defendants arguing that the reason you are not totally better is because you were doing activities you should not, and made your injury worse or delayed your healing, called a “failure to mitigate” (i.e. lessen) your damages, which the law often requires plaintiffs to do.
The myth of “it won’t happen to me”
You might be thinking that everything we have said so far is good advice for most people, but it doesn’t apply to you because you are more careful than the rest. After all, you use the strictest privacy settings, so only your friends can see your posts.
This is a common myth that people often tell themselves, but in reality, this is a dangerous way of thinking. You might believe that you will be more cautious than others and that your privacy settings will protect you, but you must remember that insurance companies and other well-funded defendants have professional investigators who are tech savvy and have the ability to uncover online information that is not easy for most people to get a hold of.
Investigators have ways of getting into your network through friends or friends of friends or other means, and this could leave you exposed in ways you may not even realize. For example, what if one of your friends tags you in one of those vacation photos and an investigator happens to be in your friend’s network of friends, or your friend has all of his posts set to allow public viewing?
You thought you had all the angles covered, but somehow, they were able to find potentially damaging and often misleading photos of you. What’s worse is now that they have found a couple of photos, they decide use this as a basis to try to subpoena the rest of your social media posts to see what else they can uncover, including your private messages on Facebook Messenger or other platforms.
How should I handle social media during a personal injury case?
Ideally, you should stop posting on social media after an injury and tell your friends and family not to post about you or your accident. You may even want to suspend your accounts as soon possible after the accident or event that caused your injury. Without any accounts or activity, there is nothing for the other side to discover.
If you cannot unplug completely from social media, limit your activity to reading other people’s posts, never comment on anything, and ask all of your family and friends not to tag you in any of their photos, comment on any of your accounts, or post anything about you. And above everything else, listen to the advice of your attorney and follow his/her instructions closely on all relevant matters while you are in the middle of a personal injury claim.
Second, be completely truthful about what you can and cannot do when you make your claims. Be truthful with your lawyer, and truthful with the defendants. People do not expect an injured person to lay in bed and never get up again. You are entitled to fair compensation for your injuries, whatever they turn out to be. Having nothing to hide is always the best offense and defense.