Keeping the details of your life private has become increasingly difficult in the emergence of the digital age. This is especially true with social media which presents a particular challenge for Plaintiffs in personal injury cases as well as for the lawyers who represent them.
For years, insurance companies have hired private investigators to conduct surveillance of Plaintiff in personal injury cases. Previously, such surveillance has typically consisted only of video and photographic evidence, interviewing friends, family members and co-workers.
Personal injury victims are often scrutinized by insurance companies to see that they are not exaggerating or overstating their accident related injuries and limitations. Insurance companies will dissect every aspect of the Plaintiff’s life to ensure they are not malingering. With the emergence of social media sites such as Facebook, Twitter and Instagram, investigators and defence counsel now have a valuable and inexpensive new tool at their disposal to monitor the activities of personal injury Plaintiffs. A cheap and effective form of surveillance is to examine a Plaintiff’s Facebook account or activity on other social media accounts.
As Plaintiff personal injury lawyers, we have all heard or experienced first-hand horror stories about Plaintiffs who have posted photos on Facebook or described activities which they claim were previously too difficult or impossible to do because of their injuries. One example might be of a Plaintiff who is seen working out at a gym lifting heavy weights. Another example might be that of a Plaintiff who is seen drinking and socializing at a party. Another could be of a Plaintiff working at a physically demanding job, activities which they denied being able to participate in following their accident due to their injuries.
If the Plaintiff has otherwise legitimate and serious injuries, Facebook photos such as the ones described alone may not necessarily ruin their case. However, perception is everything in personal injury cases and establishing the credibility of a personal injury Plaintiff is often the key to a successful outcome. This is especially true with injuries that are difficult to prove and which do not involve much ‘objective’ medical evidence, such as depression, chronic pain, fibromyalgia and post-traumatic stress disorder. The credibility of a Plaintiff in such cases could be damaged and their case compromised as a result of their activity as shown on social media.
Even though a picture of a Plaintiff doing some physical activity or socializing might have been a rare and isolated event and does not tell the whole story, it makes proving their case more difficult. As Plaintiff’s counsel when we are faced with a compromising photo or post of a client on Facebook, our job then often involves some measure of damage control in order to limit the negative impact social media has on our personal injury client’s claim.
There has been recent case law in Ontario which states that any information and photographic evidence on social media sites are relevant and producible in the context of a personal injury claim. The Plaintiff may be ordered to preserve and even produce the content on these social media sites. The Plaintiff may also be asked by defence counsel not to delete any content posted in these social media sites.
As Plaintiff personal injury lawyers, we typically instruct Plaintiff to limit access to their Facebook profile. This can be done by changing the privacy settings which limit access to their social media profiles to close friends or family members. We also instruct Plaintiffs to be very careful of what they post on social media sites.
We advise Plaintiff clients to really think about what they are posting and who could have access to your profile before they post that picture or message on Facebook. We often put this question to Plaintiffs in simple terms: would you want the insurance company or their lawyer to see what you have posted? Plaintiff should speak to their personal injury lawyer about the role and impact of social media on their personal injury claim.
