Challenges Facing the Personal Injury Case in the Era of Social Media

Social media has significantly increased our access to information and bonds with others and our community. Many use social media on a daily basis to connect with friends and family, to post about our daily interactions, and to celebrate our successes and support each other in our losses.

Social media is defined as types of electronic communication through which users form online communities to deliver information, ideas, personal messages, and other content. The most popular social media networks in Canada include Facebook, YouTube, Twitter, Pinterest, Instagram, LinkedIn and Snapchat.

According to social media statistics in Canada, by the end of 2017 approximately 22.7 million Canadians had a social media account. In Ontario alone, 67% of the province have a social media account (64% of all Canadians have a social media account).

These social media networks are constantly being monitored by insurance companies or defence counsel to obtain evidence that puts into question the Plaintiff’s (the individual bringing a lawsuit against another) credibility.

In Ontario, individuals may seek compensation for injuries sustained in motor vehicle collisions, slip and fall accidents, medical malpractice, and other types of accidents. Many of these personal injury cases are influenced by social media evidence.

DISCLOSURE OBLIGATIONS IN PERSONAL INJURY LITIGATION

In Ontario, parties are required to disclose to the opposing party every document in their power, possession or control that is relevant to the lawsuit. Each party is entitled to be made aware of every document that exists for the potential use at trial.

According to the Ontario Rules of Civil Procedure, all parties are required to serve an Affidavit of Documents on the other party listing all of the documents that are, or were, in the party’s possession and that are relevant to any matter in issue in the litigation. This obligation to disclose relevant documents is an ongoing obligation throughout the litigation process.

Pursuant to Rule 30.01(a) of the Rules of Civil Procedure, documents are defined to include “data and information in electronic form”.   Therefore, social media data, including instant messages, photographs, and personal information, that are stored on websites such as Facebook, Instagram, and Twitter, are considered documents for the purposes of discovery.

In Canada, social media accounts are ordinarily considered by the courts to be documents that must be produced during the course of the litigation if they contain relevant and material information related to the lawsuit.

In a personal injury case, a claim is often made for loss of enjoyment of life. If this is the case, photographs of a claimant engaged in recreational activities are often admitted as evidence to demonstrate the plaintiff’s “enjoyment of life” or ability to work. Thus, defence counsel may be looking for any updates, posts or photographs on social media websites to attack the plaintiff’s credibility.

USE CAUTION WHEN POSTING ON SOCIAL MEDIA

It is recommended that anyone who has been injured in an accident and is considering commencing a claim for damages or has commenced a claim for damages, should avoid social media updates altogether (photos, status updates or messages).

If your social media accounts are set to “public”, anyone with an account on a social media website can easily access all of your posts and photographs. In this manner, insurance companies and defence lawyers can review your account to discredit your claims as set out in your lawsuit.

Some examples of the types of information that insurance companies and defence lawyers may use in defence of the lawsuit include:

• Information about the treatment of your injuries;
• Information about your case, including conversations with your lawyer or other involved parties;
• Information or photographs that may show that you are not following through with the treatment prescribed by your health care professionals;
• Information relating to pre-existing injuries or previous accidents that can be used to undermine your lawsuit;
• Photographs of you engaging in physical activities if you have allegedly suffered a physical injury that is the subject of the lawsuit; and
• Photographs of you socializing if you are alleging that you have suffered emotional trauma as a result of the subject of your lawsuit.

RECOMMENDATIONS FOR PERSONAL INJURY CLIENTS WHO USE SOCIAL MEDIA

If you have commenced an action or are considering an action for damages as a result of injuries sustained through no fault of your own, it is important to use social media wisely to prevent it from negatively impacting your case.

• Avoid using social media entirely until the conclusion of your lawsuit.
• If you must continue using social media, think twice before posting: If you have a pending personal injury case, do not share anything on social media that you may regret.
• Ensure that your Facebook page is private: Only share personal information with a small circle of friends and family and do not accept friend requests from people you do not know.
• “Untag” yourself from any photographs on social media that were taken after the injury that forms the basis of your lawsuit and request that all friends and family avoid “tagging” you in photos during the duration of your lawsuit.
• Always be honest about your injuries.
• Do not post any information regarding your lawsuit or any discussions you have had with your lawyer on any social media websites.

CONSULT AN EXPERIENCED PERSONAL INJURY LAWYER

It is recommended that you discuss your social media presence and other details regarding your personal injury claim with a lawyer. Every case is unique and an experienced personal injury lawyer who is familiar with your particular case will take the time to advise you of the best options.

At Jasmine Daya & Co., we represent individuals who suffer from all types of serious personal injuries. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. Please contact our office online or at 416-967-9100 for a free initial consultation with one of our knowledgeable personal injury lawyers today.