Social media posts can be used against you after an accident

By Paul Russell, LegalMatters Staff • If you suffer a personal injury due to someone else’s actions, talk to a lawyer about it and not to your friends through social media, advises Ontario personal injury lawyer Joshua Goldberg.

“I understand that many people, especially younger generations, rely on Twitter, Snap Chat, Facebook, whatever, as their primary means of communication,” says Goldberg, principal of Joshua Goldberg Law.

“That’s fine. But if you suffer physical injuries in an automobile accident or another scenario, anything you put on these networks can be used against you when you are making a personal injury claim,” he explains.

According to an online business journal, a “record 31.8 million Canadians use an average of six different social networks, spending one hour and 53 minutes there every day, on average.” The publication notes that Facebook remains the most popular platform, followed by a grouping called “various messaging apps.”

Social media accounts provide free surveillance

“If you have filed a personal injury claim, you should assume that the defendant’s lawyers will be looking at your various social media accounts, as these provide free surveillance of your ability to cope after an accident,” Goldberg tells LegalMattersCanada.ca.

He explains that many personal injury claims revolve around the credibility of the claimant. If there is anything on your social media accounts that show your injuries are not as bad as you claim, that evidence can be used against you to erode your credibility, Goldberg says.

A 2018 Ontario Financial Services Commission hearing illustrates the efforts an insurance company made to prevent having to pay benefits to a teen injured in an auto accident. According to commission documents, the insurance company mined her social media accounts and found photos of her in various active situations including being a model in the Caribana Festival Parade in Toronto. 

At one point, the insurance company’s lawyers suggested she “looked too pretty to be sick,” the judgment notes.

Conduct of the insurer ‘borderline harassment’

In siding with the woman, the commission noted, “the conduct and borderline harassment demonstrated by the Insurer as it related to some witnesses that the Insurer called is rarely ever seen.”

“It is easy to search and view most people’s social media accounts,” says Goldberg. “If an insurance company discovers pictures of you dancing, playing soccer or engaging in some other physical activity after you have claimed a grievous physical injury, they will use that against you.”

He says that is unfortunate as a photo is just a “snapshot of time” and does not provide a complete picture of a person’s injuries.

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“Perhaps you took a heavy dose of pain medication right before the photo was taken, then spent the next two days in bed because you over-exerted yourself,” Goldberg says.

A media report shows how social media images can influence the court. It notes that a B.C. woman sought damages after suffering neck, back and shoulder injuries in two car accidents. She testified that her life completely changed and that she was depressed, a “homebody” and her only friends were on the Internet.

‘I’m not a happy person. My life sucks’

“I’m not a happy person. My life sucks,” she told a psychiatrist.

But a B.C. Supreme Court judge largely rejected her claim for hundreds of thousands of dollars in damages, citing problems with her credibility. He referenced images on her Facebook account, showing her river-tubing with friends, attending costume parties and performing at a karaoke competition. Her actions in the photos were “completely inconsistent” with someone suffering from psychological trauma, the judge wrote.

To avoid having your social media account used against you in an injury claim, Goldberg offers these tips to clients who still want to use social media after an accident:

• Don’t talk about the case or your injuries, including any details arising from discussions you have with your lawyer.
• Avoid discussing what medical treatment you are receiving.
• You may be frustrated with the insurance company or Ontario’s injury compensation system, but don’t air your grievances.
• Don’t discuss any conversations or interactions with anyone involved in the case.
• Avoid posting pictures of yourself.
• Set your Facebook page to private.
• Decline friend requests from people you do not know.
• Never post anything that may impact your case.

“Insurance investigators will do everything they can to strengthen their case and weaken yours, which includes using your social media posts against you,” he says.

Goldberg adds it is also important to be truthful about your injuries.

“If you get caught in a lie through what you say or show on your social media accounts, your credibility will be severely eroded, along with your chance of being fairly compensated for your injuries,” he says.