Most of us are using social media in one way or another. Facebook, Twitter, Instagram and other forms of social media allow us to communicate with others and share details about our lives with just a click of a mouse or a tap of the finger. We have a strong tendency to post only happy photos and positive life events, sharing exciting news that we want our friends and family to know about. We rarely post about the tough moments, the struggles, or the mundane details. And therein lies the problem.
When we post only the positive, we create an illusion that we have it all together, and that our life is only happiness and joy. Great, right? Not so when you consider that insurers like ICBC routinely conduct cyber searches on claimants. The illusion of happiness and success can raise questions about the legitimacy of a claim, and the insurer could argue that photos and/or posts are documented proof that your life has not been significantly impacted by the injuries you’ve sustained!
Take for example, a recent client of mine who was involved in a motor vehicle accident. She sustained multiple injuries and suffered from chronic pain, depression, anxiety and post-traumatic stress disorder. As part of her “behavior activation therapy,” a psychologist recommended that she take active steps to pursue her interests. Being a gifted writer and photographer, the client started a blog. She took the blog very seriously, she wrote about events in her community and local interests that might appeal to her readers. She posted about taking her children to these events and having an amazing time.
The image my client portrayed online was a busy, active mom who was successful and socially engaged in her community. Of course, she appreciated from the outset that nobody would read anything from a “Debbie Downer” so she made every effort to keep her blog posts upbeat and positive. The reality, however, was that she often didn’t fully engage in these events, or she would leave early because the pain from her injuries, fatigue, and feelings of being overwhelming. It was a struggle for her to leave the house on certain days, but she didn’t write about these pain symptoms, and her readers never knew. With one click of her iPhone she had a photograph, and given her writing talent she had a compelling story.
At trial, ICBC argued that my client’s blog posts were evidence that she continued to be happy, social and active. They argued that any injuries she sustained in the motor vehicle accident had little effect on her lifestyle, that she was doing just great, and as a result any compensation ought to be very modest.
During the trial I explained to the judge that my client’s blog, Instagram, Twitter and Facebook posts were an “illusion.” My client was promoting a fun, active lifestyle to attract her readers, but she still profoundly suffered from her injuries.
In another case, during the 2012 trial of a young woman who had suffered neck and back injuries in a motor vehicle accident, ICBC argued that photos she posted on her Facebook page were evidence that her injuries did not limit her social activities. The photographs showed the young woman enjoying a weekend trip to Las Vegas with her friends. Although the judge didn’t give much weight to these particular photos, they were still taken at face value, as evidence of what the young woman could participate in.
It is important to recognize that anything you post online, including blog posts, comments and photographs, is potential evidence if the information is relevant to your injuries or to the issues at trial.
When considering the content you post online, particularly if you have an insurance claim against ICBC or a disability insurer such as BC Life, we recommend that you adopt a “less-is-more” attitude about social media (i.e. say less!!). If you do decide use social media, recognize that your posts will be taken at face value, so it is important that you remain authentic and stick as close to reality as possible. Don’t embellish or take creative license with the information you share. Further, resist the temptation to post complaints about your injuries and pain symptoms, which could be interpreted most unfavorably by a judge, making you appear focused on litigation and trying to advance your claim.
If you have questions about how social media evidence can be used in court, speak to your lawyer. You can also read our previous posts on the subject here: Your Facebook Profile as Evidence Against You (Part 1) and (Part 2).
This blog is produced by Waterstone Law Group LLP. This blog is intended for information purposes only and is not offered as legal advice for a specific claim. Subscription to or use of this site does not establish a solicitor – client relationship between the user and Waterstone Law Group LLP or any of the individual contributors. For advice relating to your personal injury claim, please contact us to arrange for a free consultation.