Be Careful When Posting to Social Media During a Personal Injury Claim
What You Need to Know About Social Media
If you belong to a public social networking site such as Facebook, YouTube, Twitter, LinkedIn, Pinterest, Instagram, Snap Chat, Vine, Google Plus, etc., you need to be aware that whatever you write, post or tag, or whatever you have already written, posted or tagged, may fall into the hands of the insurance company for the defendant(s). It is now standard practice for insurance companies to obtain this information and it is sometimes obtained without your knowledge or permission.
Therefore, we advise you to use great caution with regard to any social media activity. It is very likely that you will have to provide your account passwords to the insurance companies and the person, business or government entity that caused your harm. If you refuse, they may ask the court to order release of your password information.
We have seen an increase in electronic surveillance in these types of accounts and sites by insurance companies, investigators, and defense attorneys. They hope to discover information to embarrass, humiliate, or hurt you. They will look for pictures or comments by you or your friends that they can take out of context to prove that your injury is exaggerated or false. We have seen innocent, harmless joking between private “friends”, used and distorted by insurance companies to try and convince a judge and jury that a plaintiff is dishonest. Please always be aware that anything posted or uploaded online by or about you, including photographs and videos, may be used against you in a future deposition or trial. Also, be aware that the insurance company for the defendant(s) may be entitled to request from you all information contained on your home computer(s), laptop(s), hard drive(s), tablet(s), cell phone(s) and any other mobile device(s) regarding any of the issues discussed above – so please adhere to our advice.
If you have such a site, you should immediately verify that all your settings are on “PRIVATE” (the highest setting possible) and nothing is public. Even with the highest privacy settings, you should only write or post items that cannot be used to hurt you. These sites are open to the public. The law is unclear if, or to what extent, privacy laws apply.
So, what can you do to avoid this? We recommend that you adhere to the following guidelines with respect to social media until your claim is resolved, in order to reduce the likelihood of damaging evidence being used against you:
- STOP actively posting, commenting, “liking,” uploading or tagging to any of your social media sites.
- DO NOT take any “selfies” or allow yourself to be included in any group “selfie” pictures.
- DO NOT accept any “friend” or contact request from any individual on any social media site unless you are absolutely sure you know that individual personally.
- DO NOT download, access or use any insurance company mobile app.
- DO NOT, to the extent possible, allow or permit any of your friends or family members to take any photographs of you, your activities, or your injuries, unless requested by us.
- DO NOT, to the extent possible, allow or permit any of your friends or family to post any comments about, or in reference to you on their social media sites.
- DO NOT, to the extent possible, allow or permit any of your friends or family to “tag” you in any photographs or videos on their social media sites.
- DO NOT participate in any blogs, online chats or message boards.
- DO NOT send emails, texts, instant messages, direct messages or have any other electronic communications with any individual other than our office staff about your incident, your injuries or anything else having to do with this claim.
- DO make sure that the settings on all of your social media sites are set to the highest privacy settings possible.
However, it is extremely important that you DO NOT destroy or delete any information that you have posted on social media. If you do delete information, this could be considered spoliation of evidence and/or fraudulent concealment. In other words, if a defendant or insurance company discovers that you have deleted relevant information, it is possible for a court to impose sanctions against you, including the possible dismissal of your case.
It is therefore extremely important that you:
- DO NOT delete, destroy or otherwise remove any post, comment, photograph or video that currently exists on any of your social media sites.
- DO NOT shut down, cancel, deactivate or suspend any of your social media sites.
Be aware that the insurance companies may ask the court to order release of all information contained within your home computers and laptop hard drives regarding the issues we have discussed above. We have seen insurance companies subpoena cell phone records to obtain transcripts from texting. We have seen them subpoena Facebook and other social networking sites.
Finally, our law firm and staff members do use social media. Our policy is not to “friend” our clients until the legal case has concluded. This is because we are in an attorney-client relationship with you and need to establish clear boundaries to protect this relationship for so long as your case is active.
The bottom line is: “think before you post/tweet/comment.” If you are unsure whether a comment, tweet or post you want to make is appropriate or potentially harmful, err on the side of caution and do not do it. If you are still unsure, please contact us to discuss the issue before you hit send.