Have a Personal Injury Case? Beware of What You Post on Social Media
People post pictures and videos of themselves and others on the Internet all day, every day. Social media platforms like Facebook, Instagram and LinkedIn are ingrained parts of a large segment of our society. While it helps people stay connected, social media impacts the legal field, particularly those with injury cases, in a number of ways.
First, the field of law moves slow. It takes years for cases to pass through appellate and supreme courts and for bills of law to be drafted, amended, passed, and enacted. As a result, courts have generally been slow to provide protections to those who voluntarily post things on the internet, including people who have been injured by others.
Your Privacy Rights vs. Insurance Companies’ Rights
It comes down to protecting the privacy rights of the injured person versus the rights of the insurance company and its attorneys to fully investigate a claim. Obviously, if someone is claiming to be seriously injured and unable to work as a car mechanic, a video of him climbing around and changing the brakes on his personal vehicle seriously undermines his claim. However, does this right outweigh the privacy rights of the individual?
The use of social media postings in insurance claims poses several problems. Photographs and videos can be deceiving, and insurance companies will use them out of context at any opportunity.
How Social Media Posts Can Be Used Against You in the Courtroom
Suppose you have suffered a serious and debilitating back injury because you were struck by a truck driver who fell asleep behind the wheel. The crash happened because the truck driver had been on the road for more hours than allowed under federal regulations.
Because of your back injury, you endure months of rehabilitation and all of the pain and mental anguish that goes along with it. You can’t crawl around on the floor with your kids or throw them around like you used to because of your injuries. Being out of work for so long makes you wonder about the security of your job. You worry about providing for your family. Medical and surgical costs are mounting. Your wife has become an in-home nurse.
You use those things as motivation to work as diligently as possible and push your rehabilitation to heal as fast as you can. After months of painful surgeries, doctor’s visits, radiology scans, and physical and occupational therapy, you finally feel well enough to venture out of your house. You go to a nearby park with your family. There is a trail that leads up a hill between some trees and rocks and leads to a picnic area with a nice view.
Your wife is thrilled that you are finally out and about. She posts pictures of you, smiling while posing with the view in the background to her Instagram account. She tags you happily and continues on with the day. Later, she takes a video you walking on the path and posts that too. Everyone continues on with their day, hopeful that these kinds of things can become more frequent in the future.
Social Media Posts Can Distort the Truth
Fast forward to your jury trial against the driver and the company who drove too many hours, fell asleep and changed your life forever through no fault of your own. The insurance company and its lawyers will use those pictures to turn you into a mountain climber. Look, they’ll tell the jury, he’s smiling and happy. Look at him climb those steep rocks. He seems pretty uninjured to me, folks.
What they won’t tell the jury about is what it took for you to get to that point, or how you suffered in pain as a repercussion for pushing yourself too far. There are no photos of you lying on the living room couch in agony for three days to rebut the photos that the jury has seen. There are no videos of the three hours that you tossed and turned in bed that night, unable to sleep due to the unrelenting pain.
There is no way to convey to the jury the mixed emotions you felt that day: the joy at being able to do it, mixed with the anger at the driver and company that had taken so many of those moments from you. Are the insurance company lawyers’ arguments fair? Of course not. But hey, anything goes if it means saving the insurance company a few bucks.
Also, dates and time stamps on photos and videos can be misleading, or plain wrong. Some jurors may also not be familiar with social media, and it may be easier to mislead them into thinking the date on which a particular picture was posted was the date it was taken. While this may be true in some instances, it is not always the case.
In one case, defense attorneys attempted to use photographs taken well before an accident in an effort to establish that a client was not hurt due to the crash. Luckily, the photos were taken at a significant life event, so the claim was easily refuted.
Your privacy settings will not protect you
Even if you use privacy settings on your social media accounts, the courts may not provide you protection in your injury case. Some courts have found that your privacy rights are diminished because you have placed your physical condition at issue in your case.
We once had a case where, despite our strongest protests, the judge ordered our client to turn over ALL of the information he had ever posted on Facebook through a feature that allows you to easily download all of your information. In a couple of extreme cases, courts have ordered plaintiffs to turn over credentials and passwords to their accounts or submit their electronic devices for forensic examination.
You can also get into trouble for deleting information from your social media account in an attempt to hide potentially damaging information.
Concerned about how your social media presence could affect your case? Call us today
Pretty much everything we do on the internet and social media leaves some sort of digital footprint. It is best to assume that everything you have ever posted or ever will post to the internet can and will be seen by someone.
If you are injured and have concerns about these issues, the best thing to do is retain a good lawyer who is experienced and knowledgeable about these issues. Be open and honest with them about what you have posted and any concerns you may have. Our lawyers at Shannon Law Group at available to speak with you at any time. Contact us today to get started.