Social media platforms continue to grow in availability and popularity, with most individuals holding at least one social media account. While social media is a quick and convenient way to share updates with friends and family, certain posts may be harmful to a personal injury claim. If you are pursuing a claim following a car accident or other injury, it is important to be mindful about what you post to social media as your profile may be subject to scrutiny by the insurance company and defence counsel. Further, it is important to be aware of what your loved ones post and share as well. Limiting your social media presence until your claim has been settled can ensure that photos, videos, or statements are kept from being posted that might jeopardize your potential compensation.
Disclosure obligations and social media evidence in personal injury claims
The Alberta Rules of Court require parties to disclose documents relevant to the material issues in legal proceedings, including social media profiles and posts.
The law surrounding using social media posts in personal injury claims has evolved over the years. Courts across the country, including in Alberta, have generally held that social media posts may be considered “records” or “documents” for disclosure purposes, therefore requiring that they be produced in legal proceedings.
Depending on the circumstances, a court may make an order which prevents a party from deleting relevant information from social media, or a court may draw an inference against a party who has deleted relevant information or terminated a social media account during the proceedings. For these reasons, a claimant mustn’t attempt to delete any posts or social media accounts during the claims process.
Taking a social media break
A comment, picture, or video only captures a brief moment in time; therefore, social media accounts are often viewed as one’s “highlight reel.” Since social media posts can easily be inadvertently embellished to show off a happy or exciting experience, usually, a post will not portray how an individual felt before or after the activity or what they experience most days and may be misinterpreted.
In the civil claims process, settling for a personal injury claim may take months or years. During this time, a plaintiff may experience good and bad days concerning their accident-related symptoms and injuries. While individuals are free to post about any aspect of their life, and it is the hope that a plaintiff will be able to return to their pre-accident activities, it is important to think twice before making a post about these achievements on social media.
Will my profile be watched?
It is not uncommon for insurance companies and defence counsel to hire private investigators to monitor and scrutinize a plaintiff’s social media accounts throughout litigation. Therefore, while a claim remains ongoing, it is recommended that a plaintiff use private, alternative mediums to share photos and videos with family and friends. Further, ensuring that you are not “tagged” or “mentioned” in posts by friends and family members and ensuring maximum privacy settings are on can help protect your existing profile.
Social media posts may be used against a plaintiff
While issues relating to privacy concerns and relevancy may arise in litigation, social media posts are becoming more frequently relied upon by defendants as a tool to challenge the seriousness of a plaintiff’s injuries, credibility, or the claim in its entirety. For example, a plaintiff may claim that they have sustained a soft tissue injury and have suffered from depression since the accident, despite posting a photo of them smiling on a family holiday months later. A single picture may be used to support an allegation that the plaintiff was exaggerating the extent of their injuries and are healthier than they claim.
Further, it is often the case that as soon as a photo or information is posted to a social media website, that image or information becomes the website’s property. Due to the ability of the website to subsequently share such photos or information with a third-party, such photos and information are not protected by solicitor-client privilege or other privacy guarantees, regardless of a profile’s privacy settings.
In the case of DeWaard v. Capture the Flag Indoor Limited, a plaintiff sustained injuries while participating in laser tag at the defendant’s facility. The defendant argued that the plaintiff was not as injured as he claimed to be, relying on photos from the plaintiff’s Facebook profile which showed the plaintiff participating in various activities such as biking and rollerblading. The Alberta Court of Queen’s Bench held that the photos were relevant to the claim and would be considered when deciding the case. However, it also noted that a social media profile might not accurately represent the plaintiff’s day-to-day life.
Contact the Personal Injury Lawyers at Cuming & Gillespie in Calgary for Advice on Accident Claims and Social Media Etiquette
At Cuming & Gillespie, our seasoned personal injury lawyers frequently assist clients who have been injured due to a motor vehicle, pedestrian or trucking accident. While we manage the personal injury claim, the plaintiff must focus on achieving their maximum recovery. When it comes to sharing milestones and good days on social media, it is important to understand the risks and consequences that these posts may have. Our injury lawyers ensure that maximum compensation is recovered on behalf of those who have been injured in an accident, which is why we provide clear advice to our clients about how social media posts may impact their settlement. To discuss your case with a member of our personal injury team or schedule a consultation, contact us online or call us at 403-571-0555.