In an age of increased connectivity and sharing, privacy is hard to come by. For years job seekers have often been warned about posting compromising pictures to their social media accounts; but now personal injury plaintiffs may also find that advice useful.
Insurance companies have long hired private investigators to monitor plaintiffs in personal injury cases, typically resorting to methods like video and photographic surveillance and interviews with friends and family members. But with social media sites like Facebook and Twitter becoming more popular, investigators are finding a wealth of evidence available at their fingertips.
During the course of a personal injury claim, plaintiffs are commonly scrutinized to make sure they aren’t embellishing their injuries or malingering. Investigators will look for telltale signs like driving or performing garden work when the injured person has previously claimed such activities were too difficult.
Social media users in the middle of a disability or injury claim are advised to take advantage of available privacy settings, which limit access to close friends. However, recently, Ontario Courts have held that the information and photographic material posted on social media sites is relevant and producible in a law suit and the Plaintiff may be ordered to preserve and produce that content. But even before that, using discretion in what is posted will ensure that potentially damaging photos – considered objective, permissible evidence in Ontario – don’t compromise a legitimate case.
Because many ‘invisible’ impairments like depression, chronic pain or fatigue, fibromyalgia and post-traumatic stress disorder don’t allow for much objective evidence, insurance companies and their investigators will look carefully for any discrepancies.
These impairments may also fluctuate in intensity. So while a picture capturing a rare smile from a plaintiff may have occurred when the pain was less intense, it can undermine their credibility in the eyes of the insurance company and maybe even the court. Even though it doesn’t tell the whole story, the power of perception can work against the plaintiff, especially in complex or otherwise difficult to prove cases.
Plaintiffs should speak with their personal injury lawyer about the role of social media. Futerman Partners LLP specializes in representing victims of serious personal injuries, including spinal cord and traumatic brain injuries. Visit www.futermanpartners.com to schedule a free initial consultation.