There are 4.8 billion social media users worldwide, representing about 60 percent of the global population. Researchers at the University of Maine have found that people spend an average of two hours and twenty-four minutes on social media each day.
Given these statistics, it’s likely that if you’ve been involved in an accident, you have an active social media profile and have posted before and after the incident.
This raises an important question: can insurance companies and defense lawyers access your private social media profiles?
How social media posts may be used in a civil case
When you file an insurance claim or personal injury lawsuit, one of the first things the insurer or defense team will do is scrutinize your social media accounts.
They are looking for any evidence that may contradict your claims about the accident, your injuries, or their impact on your life. For instance, if you claim the accident caused severe mobility issues but post pictures of yourself hiking or dancing, defense attorneys can use this to argue that your injuries are not as severe as you allege. Even seemingly innocuous posts can be taken out of context and used to question your credibility and the validity of your claims.
Overlooked features of social media profiles can also serve as valuable evidence in personal injury cases. For instance, your list of Facebook “friends” might reveal potential witnesses or help establish a witness’s possible bias.
Consider the following example:
Jane, a 35-year-old woman, was involved in a serious car accident and subsequently filed a personal injury lawsuit, claiming the accident left her with chronic back pain and limited mobility. To support her claim, Jane provided medical records and testimonies from her doctors. She also stated in her lawsuit that she could no longer participate in her favorite activities, such as hiking and dancing, due to the severity of her injuries.
However, during the discovery phase of the lawsuit, the defense team conducted a thorough investigation of Jane’s social media profiles. Despite her privacy settings, they managed to find a recent public post from a mutual friend that tagged Jane in a photo album. The album included several pictures of Jane on a hiking trip just a few weeks after the accident, smiling and appearing to be in good spirits. Additionally, there was a video of Jane dancing at a friend’s wedding, which contradicted her claims of severe pain and limited mobility.
The defense attorneys used these social media posts to argue that Jane’s injuries were not as debilitating as she had claimed. They presented the evidence in court, highlighting the discrepancies between Jane’s statements and her online activities. As a result, Jane’s credibility was severely undermined, and the jury began to question the validity of her entire case. Ultimately, the court awarded her a significantly lower amount of compensation than she had anticipated, primarily due to the damaging social media evidence.
Can insurance companies and defense lawyers access my private social media profiles?
You wouldn’t be unreasonable to think that setting your social media profiles to private will protect them from legal scrutiny. However, this is simply not the case.
During the discovery phase of the lawsuit, attorneys can (and will) request access to your social media accounts. If you refuse to provide access to your accounts, the defense attorney will file a motion to compel. In other words, the defense attorney will request that the court force you to provide access. Courts typically grant these requests so long as the information sought is relevant.
To be relevant, a piece of evidence doesn’t have to be admissible in court. Rather, it must be “reasonably calculated to lead to the discovery of admissible evidence.”
For example, consider a social media post where a plaintiff mentions planning a hiking trip. While the post itself might not be directly admissible in court, it could lead to the discovery of photos or videos from the trip showing the plaintiff engaging in physical activities that contradict their claims of severe mobility issues. Thus, this initial social media post is discoverable because it could lead to other admissible evidence that impacts the case.
Can a social media company be forced to turn over my information?
Getting information directly from a social media company through a subpoena can be difficult. Social networking sites like Facebook are typically resistant to such requests due to privacy concerns and legal issues under the Stored Communications Act (SCA).
Social media companies prefer that parties in litigation resolve discovery issues without involving the company, as the needed information is often accessible from the parties involved in the case.
The legal standards for admitting social media evidence in court
To admit social media evidence in court, the evidence must be:
- Relevant,
- Not outweighed by countervailing considerations, and
- Authenticated
Evidence is “relevant” if:
- It has a tendency to make a fact more or less probable than it would be without the evidence, and
- The fact is of consequence in determining the action.
To put it another way, does the social media evidence support or disprove the claim? If not, it’s probably not relevant and won’t be admitted.
The term “outweighed by countervailing considerations” sounds complicated, but it basically means that the social media evidence will only be admitted if the benefit of admitting the text message isn’t outweighed by some other consideration.
The most common countervailing considerations are:
- Hearsay: Hearsay is an out-of-court statement made by a person and offered to prove the truth of the matter asserted. Generally speaking, hearsay is inadmissible in court. With that being said, there are lots of exceptions to the hearsay rule. For example, a statement may be admissible if it was made by a party to the case.
- Confusing: If the social media evidence is likely to confuse or mislead the jury, it typically won’t be admitted.
- Unfairly prejudicial: Unfair prejudice may be grounds for excluding relevant evidence. Evidence is unfairly prejudicial if it’s likely to cause a juror to make a decision based on an improper reason. Evidence that elicits a strong emotional response (such as a photograph of a dead body in a wrongful death case) may be deemed unfairly prejudicial.
Finally, social media evidence must be “authenticated” in order to be admissible. This sounds complicated, but it essentially means that an attorney must prove that a social media post was written by the person the attorney claims it was written by.
What are the ethical considerations of social media evidence?
According to the Model Rules of Professional Conduct, attorneys are prohibited from engaging in deceptive practices, such as creating fake profiles or misrepresenting their identities to gain access to private information. Violating these rules can result in disciplinary action against the attorney.
Some jurisdictions have specific guidelines on the ethical considerations of social media evidence.
Practical tips for managing your social media during a case
Given the potential pitfalls, it’s important to manage your social media presence carefully if you are involved in a personal injury case. Here are some practical things you can do:
- Set your account to private: While not foolproof, setting your social media accounts to private may limit the visibility of your posts. This step may not prevent access, but it can act as a deterrent to casual snooping.
- Avoid accepting new friend or follower requests: Be cautious about accepting new friend or follower requests during your case. Even if you think you know the person, it’s possible that they could be acting on behalf of the defense.
- Avoid discussing your case online: Discussing your case online is always a bad idea. Avoid mentions of the accident, your injuries, legal strategies, or even your feelings about the case. Encourage your friends and family to do the same.
- Avoid posting about physical activities or travel: Posts that show you engaging in physical activities or traveling can be used to argue that your injuries are not as severe as claimed. Even if your activities are part of your recovery process, they can be easily misconstrued.
- Assume everything can be recovered: Deleted posts can often be recovered through digital forensics. Assume that anything you post online is permanent and can be accessed by the defense. This includes not just social media posts but also emails and text messages.
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