Many people cannot get through the day without scrolling through and posting photographs and comments on social media platforms, such as Facebook, Instagram, Twitter, Snapchat, and LinkedIn. However, after suffering a personal injury due to the negligence of another and filing a subsequent personal injury claim, you must be careful as to the content on your social media page. Additionally, throughout the course of your lawsuit, you must be aware of any images, posts, and comments of friends or family members in which they tag your social media account, thereby making the content available to your social media friends and/or followers.
Usually, the best practice is to take a social media break until your damages claim gets resolved. It can also help if you ask your close friends and family not to post anything about the accident or you. Even if you or they post something innocent and unrelated to your injury, the at-fault party can take the words or images out of context and twist them into something you did not intend.
Many personal injury cases involve a claim with an insurance company. Since insurance companies are looking for an excuse to pay as little as possible for your claim, they will try to find evidence that your injuries are not as severe as they seem, and their investigation may include scouring social media sites for information.
If you post information or photos that contradict your injury claim in any way, an insurance company may try to use that information against you. For example, if part of your claim is that you cannot pick up heavy objects, posting a photo of yourself holding a child or helping a friend move would likely be used by an insurance company as evidence that you are exaggerating your injury.
All information you post on social media can be considered public, as there is no reasonable assumption of privacy on social media platforms. This means your posts can potentially be used as evidence against you in a personal injury case.
Even if you have increased your privacy settings, there are still ways for others to see what you are posting or sharing. Friends and family members may unknowingly give others access to your information through comments or tags, for example. Something you might feel is unrelated, like an after-work happy hour with co-workers, could be relevant to your car accident injury case. Your lawsuit might allege that you are barely able to walk because of pain from your injuries. Photographs of you dancing with friends at a bar can destroy your claim for injury compensation.
Even if your social media accounts are private, insurance companies can still request access through the discovery process or a court order. If an insurance company wants the information, it will find a way to obtain it. Let’s say that you limit access to your postings to friends, thinking that the insurance company is not on anyone’s friends’ list, so you think you are safe. You may only have 100 friends on your social media account but each of your 100 friends may have 200 unique friends. There are ways for “friends of friends” to see photos and posts. Any of those people can do a screen capture and send out your pictures without any restrictions and without your knowledge or permission.
Written evidence is admissible in court; social media posts, as electronic communications, are considered written documents under California law. Your statements outside the courtroom are admissible if you are a party to the case. Social media posts are relevant written statements. Therefore, they are admissible against you, as are the posts of family and friends if they contradict any statements you make.
As part of a personal injury claim, the injured party generally claims that they have suffered past and future damages as a direct and proximate result of the defendant’s negligent conduct. Such damages may include bodily injury, great physical pain and suffering, disability, loss of capacity to lead and enjoy a normal life, inconvenience, physical impairment, disfigurement and scarring, mental anguish, loss of or diminution of earnings or earning capacity, loss of consortium, permanent injury, and all past and future medical expenses.
These economic and non-economic damages are awarded to restore the injured party to the condition in which he or she was in before the injury occurred. In proving these damages, the injured party, through their attorney, must prove that they suffer from a legally recognized harm, usually in the form of a physical injury. Knowing the injuries to which you claim, the defense attorney will look for any evidence that may suggest to the jury that you are either not suffering at all or that you do not suffer to the extent to which you advocate, thereby diminishing your damages.
It may be in your best interest to simply suspend your social media accounts while your personal injury case is pending. If you feel that you absolutely cannot go for several months without engaging in social media, please consider following these guidelines:
Since social media can be a double-edged sword, you should consider how a post could potentially affect your claim before posting it to social media. You should also have a conversation with your attorney regarding what is and is not appropriate based on your particular case.
Technology can be a beautiful thing, but using social media during a pending liability claim can backfire on you. Unfortunately, sharing certain information on social media can undermine your case. Finding the right balance is essential if you are going to keep your account.
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