Approximately 70 percent of Americans use social media. Most have gotten into the habit of checking and posting to different accounts several times a day. Connecting with people, sharing life experiences, finding work, and even meeting friends online are all benefits of social media.
However, those benefits can backfire and have negative impacts on a personal injury claim. When you file a personal injury lawsuit, you need to know what is safe to post online and what isn’t before you hit send.
Are Your Posts Really Private?
On most social media platforms, you can choose the privacy level of your account. If your account is public, everyone on the social media platform can see your posts even if you’re not connected with them. That includes the other party in your personal injury lawsuit, their lawyers, and their private investigators. Private posts have more protection, but that doesn’t mean no one can see them.
The other party will be monitoring your accounts, trying to find any pictures or posts that contradict your claims. They will be creating their narrative around your posts, so it’s better not to provide them with material for their story. Leave the story to your personal injury attorney.
If you belong to special interest groups on social media—for example, a travel group on Facebook—the other party and their lawyers can find you. It would be easy for the other party to connect with you via a special interest group, giving them access to your posts—even individual posts set to “Friends Only.”
Even if you’re strict about your friends and followers, there are people you don’t know viewing your posts. Those strangers could include the other party in your personal injury suit. If you post about your injuries, your recovery, or your lawsuit, then you may be revealing information that could be used by the other party in an attempt to derail your case. Do not accept any new friend or follower requests during your personal injury case unless you know the person already.
Social Media Posts Can be Used as Evidence
Even if you have a secure social media profile, the other party’s lawyer or the court can require you to provide printouts of all of your social media posts. Deleted and hidden posts can also be recovered, if necessary.
Do not add any social media accounts while your case is pending, even anonymous, fake, or shadow accounts, such as a “finsta,” or fake Instagram, account. Even if no one knows the account is yours, the discovery demand will not be limited to named accounts—it will include all of your accounts. If you fail to disclose your anonymous accounts and the other party discovers them, you risk undermining your case and being held in contempt of court.
If you refrain from posting on social media, you won’t inadvertently reveal potentially incriminating evidence that the other party can use against you.
Any Post Can be Incriminating Evidence
You might think that your post is innocuous, but the other party will be looking for incriminating evidence. A flower from an evening walk or a DIY project you’re proud of completing could be taken as evidence that you’re further along in your recovery than you’ve claimed. Pictures of you smiling at a party or going out with your friends could be seen as signs that your emotional distress claim is exaggerated or false.
If your friends and family are sharing pictures of you on social media, those pictures also put you at risk. If anyone discusses your case online, the other party could find those posts, too. Ask your friends and family not to post pictures or comments about you until your personal injury case has been resolved.
Share Your Frustrations with Your Attorney, not Your Followers
Resist the temptation to put the other party “on blast” or “name and shame” them. Any such post could be considered a threat or extortion. Avoid increasing hostility in a personal injury lawsuit. At best, it will make settlement negotiations more difficult. At worst, the other party will refuse to settle and take the case to trial.
Taking a personal injury lawsuit to trial is much more difficult and expensive, and it puts your case in the hands of a judge or jury, which adds another layer of unpredictability to your case. It could also increase the discovery demands, which further exposes your social media presence. Any communications with the other party should be done through your lawyer and theirs, not on social media for all to see.
In a settlement agreement, a non-disclosure clause will prohibit revealing the amount of the settlement, the name of the other party, and possibly even the existence of the settlement. Even an oblique reference, which mentions the amount or the company, without explicitly referencing the settlement, could be problematic. In cases like these, the other party’s attorney can argue that you violated the terms of the settlement agreement.
The penalty for violating the non-disclosure clause will be a part of the agreement. If you disclose any of the prohibited items, you could be ordered to return the entire settlement amount. Your personal injury attorney would then negotiate for a liquidated damages clause, which means you would pay a lower amount if you violate the non-disclosure clause. Your personal injury attorney should also negotiate for a higher settlement if the other party demands a non-disclosure clause.
Take a Social Media Hiatus
Your personal injury attorney can provide social media guidelines, but even if they do, it is safer not to post on social media while your personal injury case is pending. If you want to maintain your social media presence, limit yourself to sharing news articles unrelated to your case and to liking—but not commenting on—posts from your friends and family.
The risk of posting something that can be used against your case outweighs any possible benefit. Therefore, it’s safer to avoid posting on social media while your case is pending. If you’re concerned about your social media presence during your personal injury lawsuit, talk to your personal injury attorney at Bell & Pollock P.C.