The information we share online with friends and family can be used in ways we never imagined. Rather than showing how you try to look positive despite having injuries, the information can be used negatively in a personal injury case. Often, unfair conclusions are drawn and posts are presented to overshadow other evidence. For example, posting about a soccer game or charitable bike ride you participated in could be used to show that no serious injury exists. A friend’s photo showing you drinking at a party could be used to discredit your character. A six month motorcycle trip over rough terrain in South America could be used to argue debilitating neck injuries are being exaggerated. This is what happened in a 2015 ICBC case, when a woman’s award was reduced to $12,000 from the $35,000 requested after her Facebook posts were revealed in court.
Building a Claim for the Defence
The ICBC and other insurance companies have staff whose job is to search the internet for plaintiffs. They are interested to learn about the activities you engaged in before and after your accident. If you were involved in sports events in the past, the defence will look to see if you re-register at some point after the accident. The defence can legally follow you to see if you live a lifestyle that matches your claim. Just as they can hire a private investigator to take photos of you (e.g., walking without a cane, lifting groceries), they can use online information against you, including photos posted on someone else’s Facebook wall. With so many people treating Facebook as popularity symbol, it’s easy to accept a Facebook friend from someone who you aren’t sure you once knew. The defence can make try to make friends to learn more about you and also request your Facebook account in court, in which case your privacy settings may not protect you.
Some of the common uses of Facebook in personal injury cases have been to claim evidence that there were pre-existing injuries, unnecessary risks taken, activities pursued that could exacerbate injuries, injuries were fabricated or exaggerated and there was fraud or manipulation in obtaining an unwarranted payout. Occasionally, these arguments are valid. For example, in 2012, a claimant was fined $2,000 and ordered to pay over $18,000 after his fraudulent actions were uncovered by bragging on his Facebook page that he rolled his truck after drinking at a New Year’s Eve party and received a big payout from ICBC. During a personal injury case, your character is under scrutiny. Events leading up to the accident are investigated to argue that you acted recklessly. Your case could suffer from damaging posts, even if the defence’s portrayal of you is inaccurate.
It’s important to be careful when posting to your Facebook profile, even if you are not currently involved in a personal injury case. Anything you post should be done with a view that it may not be private. Posts showing you as acting irresponsibly or illegally could be used against you in many ways, including in future litigation.
If you have a personal injury case in the works, it’s especially critical to limit what you say and do on Facebook, including not discussing how you are feeling, limiting information about your whereabouts, the invitations you accept and what you “like.” You need to be aware of the time of day you can be seen to be active on Facebook and ensure it is not while you are driving or in the courtroom. Be careful of who you friend because the appearance of extra-friendly relations could be problematic. Also ensure that your friends don’t post anything about you and ask them to take it down immediately if they do.
If you have potentially disparaging information on your Facebook your lawyer cannot advise you to destroy or remove it. There is an argument to be made that there is relevance of electronic documents to a personal injury case. Anything removed should be preserved elsewhere to avoid arguments of spoilage. However, it is better not to make damaging posts to begin with.
It is better to avoid Facebook all together until after your personal injury case is settled. You might not realize at the time how oversharing information can be used against you. Keeping a low profile will help to mitigate the risk of being discredited. If you have any concerns or questions about a personal injury case or wish to speak to a lawyer about your case, contact our lawyers at Bronson Jones & Co. LLP. We are experienced personal injury lawyers in Vancouver who work to protect your interests.