It appears that in today’s modern society, it is the norm to enjoy an account with one or more of the social media sites such as Facebook or Twitter. It is no secret that one of the biggest issues with these sites is that your personal information is open to the public. Although, you can manipulate your privacy settings to better protect yourself from snooping strangers, how well are your private posts and pictures protected when making a personal injury claim against an insurance company?
A typical claimant in a personal injury action will complain of numerous injuries caused by the motor vehicle accident and allege that these injuries have resulted in loss of enjoyment of life or pain and suffering. Insurance companies have frequently hired private investigators to monitor the claimant to ensure their complaints are real and not exaggerated. Today, with the vast majority of people using Facebook or other social media sites, insurance companies are able to save money by simply peeping into an individual’s public account, which can jeopardize and undermine their case. Pictures and posts that are made public can be easily discovered by the insurance company with a simple click of a button.
The courts have recently been faced with the difficult question of whether evidence obtained from social networking sites is valid and admissible. Insurance companies are within their right to question the claiming party and request the production of any relevant documentation that is in the claimant’s ‘possession, control or power’ that relates to any matter in issue. The challenge for a defence lawyer is to prove that the pictures and posts contained in an individual’s private profile pages are in fact relevant or the purpose of disproving the claims made. If a person complains of a back injury but posts pictures showing him or her participating in sports or being physically active on a public Facebook profile, the insurance company may conclude that the individual is not injured. These types of pictures may also trigger an order by a Judge for the production of the private portion of the Facebook account solely because it is reasonable to infer that the private profile contains similar relevant evidence. Nevertheless, in Stewart v. Kempster (2012) the Judge concluded that “an injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand.” A picture such as this will not question the authenticity of the party’s injuries. The Judge also considered the issue of privacy by emphasizing that the claimant only allowed 139 friends to have access to her private posts and pictures. In general, Judges weigh each matter on a case-by-case basis. At times, the Judge may make an order requesting that Facebook not be altered or deleted. This keeps the door open for future production in case new relevant information arises.
It is advisable to anyone who is making a personal injury claim to ensure that they do not accept anyone as a friend who they do not know, to ensure that they are not posting any details relating to their accident, and also not to post pictures that may call into question their injuries. Additionally, privacy settings should be looked over so that the account is only viewable to friends, and not ‘friends of friends’. For those people whose profiles are available to everyone and share live updates of their daily lives with the public are sure to be exposed to the eyes of the insurance company.