Social media has forever changed the way lawyers and courts approach evidence in all types of cases, whether civil or criminal. It has particularly affected the way evidence is collected and used during personal injury cases.
Before the advent of social media, personal injury cases focused mainly on physical evidence. In these cases, defense lawyers would often try to acquire incriminating recorded statements or victims’ written communications with friends and family; they would search those materials for evidence that could discredit a victim’s account of an accident. Sometimes they would even use hidden cameras in the hopes of catching the victim doing something they weren’t supposed to be doing. And sometimes these practices are still used.
In the digital age, however, much of that work is already done for attorneys and investigators because social media gives you the ability to immediately communicate with your friends, family, and even the public at large through written posts, photos, videos, and more. When you’re experiencing the stress and frustration of dealing with a car accident or other injury, it can be tempting to vent frustrations on Facebook or Twitter and seek affirmation from your friends and family through other social networks like Instagram.
However, any materials on social media, especially if they are publicly available, are fair game to be used in your case — by either side.
The Use of Social Media as Evidence
When you seek damages by filing a personal injury lawsuit, the defendant will look through anything and everything they can to find information that contradicts your claims, especially your social media profiles.
This fact should serve as a fresh reminder that you should always be conscientious about managing your social media profiles, especially any part of your profiles that may be available to the public. In the case Zimmerman v. Weis Markets, Inc., for example, an injury victim had “bike stunts” as an interest that showed up on the public portion of a social media profile; because this interest (and other public information) conflicted with his injury claims, the court in that case allowed access to and evidence gathering from the victim’s non-public profile information as well, despite his privacy settings.
Thus, if you are making a claim that you are hurt, but you post photos or make statements online that downplay the severity of your injuries, the defense may use this information against you. Unfortunately, your comments can even be taken out of context and used in misleading ways; for example, if you posted that you were “feeling better” one day to lift your spirits and get some reassurance from friends, it might seem completely harmless at the time, but you can be sure the defense will find this information and use it against you.
Given the aggressive tactics of defense lawyers, this begs the question: should you make changes to your social media if you think you will pursue a personal injury case?
Should You “Clean Up” Your Social Media If You’re Pursuing a Personal Injury Case?
If you’ve been injured, it certainly makes sense to be more cautious about your use of social media given that information from your social accounts may end up as evidence in a personal injury claim. In most cases, your best approach is to refrain from using social media in the wake of an injury, even if you have carefully managed your privacy settings.
Of course, most people do not immediately start out on the path to a personal injury claim after they are injured (even though one of the best things you can do after a car accident or other injury scenario is to contact a personal injury attorney).
So, if you have been active on social media, should you delete photos, edit posts, or take other actions to erase or change the way that you appear online? In general, the answer is “no.” One reason for this is that it could be perceived the wrong way. While you may intend to create a more accurate picture of your life after an injury by altering your social media information, your actions could be perceived as covering up evidence which might indicate your injury is not as bad as you claim. Even if you only change one post, that action invites the question, “how much more did you change or delete?” In this way, your honest attempt to portray yourself as accurately as possible on social media can be used against you.
More importantly, you may also inadvertently alter or delete material that could become relevant evidence in your case. Depending on the circumstances, this could be deemed “spoliation of evidence,” which can affect the way your case is considered in the court and by a jury — or even cause your case to be dismissed altogether.
Lastly, if your personal injury claim is underway and you have received official instructions to preserve or provide social media data, you absolutely must not alter or delete any information. If you have not already talked to a lawyer by the time you receive requests to preserve or provide social media data or other documentation related to your injury, you should immediately contact an attorney so they can help you understand what is being asked of you and what your best course of action is.
What Should You Do with Your Social Media After an Injury?
Although you should not alter or delete material on your social media profiles when you are deciding to pursue a personal injury claim, there are some practical and prudent actions you can take to protect yourself. Here are the most important ones:
1. Increase Your Privacy Settings to the Maximum
For all of your social media accounts, you can update your privacy settings to make your profiles as private as possible. This will prevent unnecessary and invasive snooping by parties who do not have your best interest in mind, and it will place the burden on the opposing side to legally justify their requests for access to your private social media information.
2. Do Not Accept Friend/Follower Requests If You Do Not Know the Person
To get around your privacy settings, lawyers or other investigators may try sending you a friend/follow request so they can see more of your private posts. Although this may seem like obvious advice, don’t accept friend/follow requests from strangers.
3. Be Cautious About Your Ongoing Use of Social Media
If you choose to continue using social media as you pursue a personal injury case, make sure that you are informed and being proactive about your privacy settings. Ask yourself if what you are posting could be taken the wrong way, and consider how the comments of other people on your post(s) might affect a jury’s opinion of you as well.
Crosley Law Firm: Advocates for Injury Victims
If it isn’t clear by now, the use of social media is a complex issue, especially in legal situations like a personal injury claim. The best thing you can do if you have been injured and are considering filing a personal injury claim is to discuss your situation with a qualified and experienced attorney like the ones at Crosley Law Firm.
We offer free consultations to injury victims so we can listen to the details of your story and provide you with candid legal advice about what your best course of action is moving forward — including how you should handle your social media profiles. You can fill out a brief online form to request a free consultation or call our offices in Texas at 210-LAW-3000 (210-529-3000).
Obviously, social media has changed and will continue to change the ways in which we interact with others and share information. The way attorneys, insurance companies, law enforcement personnel, and judges use social media during personal injury cases will also continue to evolve.
No matter how you have set up your social media profiles and privacy settings, though, you should always be prudent about what you post for your friends or followers to see — especially if you’ve been injured and may be filing a lawsuit.
Opinion. (2011, May 19). Rane ZIMMERMAN, plaintiff, v. WEIS MARKETS, INC., defendant. (No. CV-09-1535). Court of Common Pleas of Pennsylvania, Northumberland County. Retrieved from http://employmentlawalert.wp.lexblogs.com/wp-content/uploads/sites/247/2014/02/Zimmerman_Weis-Markets_Opinion.pdf
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.