Your Social Media Posts Can and Will Be Used Against You

If you’ve been seriously injured in a car accident or other incident and have filed a lawsuit seeking damages and compensation, your posts on social media can wind up sinking your case.

For decades, insurance companies and lawyers for defendants in personal injury cases have hired private detectives and investigators to dig up evidence that could undermine plaintiffs’ claims. They could be looking for facts that could undermine the plaintiff’s theory of liability. Or, as is more often the case, they could be seeking proof that the plaintiff’s injuries are not as serious as he or she claimed or that the individual is not in fact injured at all.

Stakeouts Replaced by Mouse Clicks

With the rise of social media over the past decade or so, much of the evidence that used to be gathered from staking out a plaintiff or following them around can be done in front of a computer screen through the click of a mouse.

It is pretty much standard operating procedure for insurers and defense counsel to scan Facebook, Instagram, Twitter, YouTube and whatever may be the social media platform du jour for posts and pictures that could disprove elements of a plaintiff’s claims.

Let’s say you’ve been in a car accident and claim that you’ve suffered serious spinal injuries or broken legs and that the pain and lack of mobility have made your life one of constant suffering and challenge. As you are seeking significant compensation for these injuries, you post a picture of you and a friend laughing and smiling after finishing a great downhill ski run. That picture will likely be admissible as evidence and used to completely undermine your claim for damages.

You Can’t Hide Behind Your Privacy Settings

It’s not just your own posts that should concern you; your friend’s could “tag” you in a photo or “check-in” with you at a location – say a dance club – that will call into question the legitimacy of your injury claims. Furthermore, you can’t count on your privacy settings to save you. A number of courts have held that defense counsel can request access to photos and information even if plaintiff has a “private” page.

For example, a federal court in Michigan ruled that a personal injury plaintiff’s post on his private Facebook page could be obtained by the defendant because:

“[M]aterial posted on a “private” Facebook page, that is accessible to a selected group of recipients, but not available for viewing the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy.” 

Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012)

If you have been injured and are currently seeking, or are considering seeking, compensation in a personal injury lawsuit, you should avoid making any posts on social media. Understanding that completely refraining from social media use is a tall order for some folks, at minimum injury victims should not post anything that refers to their accident or their injuries. One Facebook picture could be worth thousands of dollars that you will never see.