An entire generation of kids has been raised with social media being a presence in their lives, and 4 billion people world wide are active on Facebook, Twitter and Instagram. Many of us share details of our lives and images of our activities without thinking twice. Some people have public profiles, others have private ones. We may think our images and content are private, but they aren’t. People can store them in their cache, and even if you delete images and content, they are likely still stored on the servers of the social media giants.
If you have been in a car accident and have made a personal injury claim asserting that you have been injured and are now limited in your day-to-day activities, any information you share on social media can be used against your claim to show that you are more capable than you claim. It does not matter whether your profile privacy settings are public or private, you can be compelled to produce them at discovery for use in negotiations or at trial.
What Social Media Content is Admissible?
Your posts, updates, location check-ins, videos and pictures can impact your claims negatively. If you make a personal injury claim your lawyer will likely advise you to stop posting to social media or to exercise extreme caution as all aspects of what you post can be admitted as evidence in Ontario as long as it is relevant to the personal injury case.
Rulings at the Supreme Court of Ontario have determined that Facebook posts can now be considered ‘documents’ pursuant to the Ontario Rules of Civil Procedure, and that the expectation of privacy for plaintiffs is lowered.
Your friends’ social media accounts may also be accessed to find incriminating and detrimental evidence in your case.
What Impact Can this Evidence Have on Your Claim?
Under the Rules of Civil Procedure, the evidence collected from social media accounts and surveillance videos can be used as evidence in court. For example, a plaintiff made a claim that their foot was seriously injured in a car accident (Isacov v. Schwartzberg, 2018 ONSC 5933) and they could no longer continue their dancing career, run or wear high heels. Unfortunately for the person the defence showed online posts of the plaintiff accessed from a friend’s social media account, of them wearing high heels at a social event. This sort of evidence can:
Diminish your credibility.
Bring into question any other evidence you submit.
Strengthen the defence’s claim.
It can make you an unsympathetic plaintiff.
It can cause you to lose your case.
What Should You do?
The law is not entirely cut and dry on social media evidence yet, and an experienced personal injury lawyer may be able to argue this kind of evidence inadmissible, or that it captured a moment in time, but you will need a good accident lawyer on your side.
If you have been in an accident and are making personal injury claims, your best course of action is to stop using all social media immediately. You may want to delete your account and also ask the platform to delete all your personal information from their servers. Call Deutschmann Law for a free initial consultation and for the expert advice you will need to win your case.