As the popularity of Facebook, Instagram and other social networks have increased exponentially over the last few years, we have been made increasingly aware of the potential dangers of displaying personal information about ourselves- what we did this weekend, photos of parties we attended, etc. But the ease with which we tell our friends and family about recent happenings in our lives has its risks especially if you were recently in an accident. Once we open the door and put the information out there for the online world to see, it’s hard to close it.
Numerous cases that have recently been decided have concluded that user data on Facebook and other social media websites are discoverable and can be used as admissible evidence. For instance, there have been several cases where a plaintiff has made allegations about the effect of their injuries on their daily lives and the defendant has subpoenaed the content of the plaintiff’s social media websites. The statements and photographs, which were obtained by the defendant, dramatically damaged the plaintiff’s case.
How Social Media is Used in Litigation
Opposing attorneys and insurance adjusters will do everything they can to minimize your claim, and they sometimes find a treasure trove of information on your social media profiles. It’s important to note that Facebook’s privacy settings will not protect you from opposing attorneys that are trying to access your page. A defense attorney can ask a judge to require written authorization from you for access to your Facebook account. This will allow opposing attorneys to see everything you have posted on Facebook. They will use that information to distract a jury and possibly damage your case by presenting comments and pictures that make you appear untrustworthy.
In a recent Pennsylvania ruling in McMillen v. Hummingbird Speedway, the court allowed the defendant’s attorney to obtain all the information on the plaintiff’s Facebook pages in order to attack the credibility of the plaintiff in terms of what he alleged pertaining to how the injuries affected his life. (McMillen v. Hummingbird Speedway, No. 113-2010 CD (Pa. Ct. Com. Pl. Sept. 9, 2010). In other words, the court ordered the plaintiff not to touch anything on his Facebook account and to allow the defendant’s attorney access to explore those pages. The motion filed by the defense actually sought the plaintiff’s username and password. That portion of the motion was denied by the court; however, attorneys for defendants will continue to push for this data, and it would not be surprising if in the near future a Pennsylvania trial court allowed the discovery of username and password information.
Further, insurance adjusters have recently attempted to “friend” accident victims on Facebook. This is an alarming trend. Insurance adjusters for the opposing insurance company are not your friends. Their job is to minimize your claim. They are looking out for the best interest of their employer, not you.
What to be Aware of When Using Social Media During a Personal Injury Case
The best thing you can do if you are involved in an accident is to be truthful and honest. But remember, there are real perils to publishing anything on the Internet. Once you put something online, it is public, despite what your privacy settings might say. So, if you don’t mind opposing lawyers and insurance adjusters seeing comments or photos about where you are or what you have been up to, feel free and post them. However, by not using Facebook or Twitter after an accident you prevent opposing attorneys and insurance adjusters an opportunity to destroy your case or deny you just compensation.
Therefore, as helpful as social media websites are in allowing us to communicate rapidly with our friends on a daily basis they should be used with caution after an accident. Once an accident has occurred, social media websites are used by opposing attorneys and insurance companies as tools to wreck your case.
Many personal injury attorneys have added discussions and reviews of client’s existing social media profiles as part of their early case review process. Following an accident, be careful of the following on social media:
- Accepting new friends/followers
- Privacy settings
- Deleting unfavorable posts
- Posting new pictures
- Checking in and tagging locations
- Allowing friends or others to tag, share or post information about yourself
The most important lesson here is, of course, to be honest about your representations concerning your injuries. The photos on your Facebook page could be misconstrued and used as fodder in the defense’s case. That’s the risk of utilizing the ease of internet social networking. We give up a degree of privacy, perhaps without even realizing it.
In Need of Advice from a Personal Injury Lawyer?
If you have a personal injury case and are uncertain about how you should go about protecting your personal information on the web, talk to your lawyer in an honest and open manner about your concerns. Keep in mind that whatever is on the web about you is probably discoverable.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.