Social Media As Evidence in Personal Injury and Disability Insurance Cases
Plaintiffs who bring a claim for personal injuries or disability insurance benefits should be careful about the types of activities and comments they post on Facebook, LinkedIn, Twitter, or other social media accessible to the public. The defendant insurance company will review your online activities in complete detail.
Canadian and U.S. law is still developing but it allows evidence from Facebook and other social media “profiles” to be producible records at trial. In the recent past, only “public profile” on Facebook was producible as evidence in a personal injury case. However, the law is evolving in this quickly changing area. In a recent case the plaintiff innocent motor vehicle accident victim was ordered to provide additional evidence containing relevant material from the plaintiff’s private Facebook profile, and further the defendant insurance company’s lawyer was permitted to cross-examine that information in the Facebook profile
In other words, the court treats Facebook material now the same as any other document and materials in litigation. If the profile contains information that is relevant and material to the personal injury action, then it is producible.
It is common for people on Facebook and other social media profiles to always put a “positive” spin on their lives and to post pictures and messages about all the wonderful things that are occurring in their lives. Victims of motor vehicle accidents and applicants for disability insurance are no different and are trying to recover from their injuries or disease and put a positive note to their friends about their lives. However this information, if it is public, could be used against the plaintiff.
Therefore it is recommended that even before but definitely after having commenced litigation against the defendant insurance company, all of your social media sites such as Facebook should be changed to “private settings” so that only your “friends” may access your full profile. Better yet just shut social media down.
In the past, the defendant insurance company would hire private investigators to conduct video surveillance; but now, with the proliferation of Facebook and other social media, their first approach is to see what they can find out about the plaintiff/applicant on social media as this information may be sufficient to undermine the credibility of the plaintiff. Again, therefore, all of your social media settings should be set to “private” in order to maintain privacy and to try to prevent the insurance company from accessing your social media information intended for your friends. However, as the courts are now in some cases granting orders that even “private” Facebook postings be produced, the best approach is to shut down all of your social media accounts, or be very cautious about what information and pictures you post on social media.