Whether you are out to see a movie with your friends or eating dinner with family, you or someone you are with has likely posted on social media detailing your activities and whereabouts. The fact is, social media is everywhere. Facebook, Twitter or Instagram — almost everyone uses one or more of these social media platforms to communicate with the world and stay connected with family and friends.
While social media platforms can be great for communicating and networking, you should be cautious when using such outlets, especially while dealing with a personal injury claim, as certain posts can have unintended negative effects. The fact is, if you are injured in a car accident and wish to bring a claim against the at-fault driver’s insurance company, posts on social media “can and will be used against you” when trying to resolve your claim. Insurance companies are well aware of the presence of social media and have begun to use these platforms as ways to gather evidence against you and your personal injury claim.
For these reasons, we have provided you with some general information pertaining to how your social media presence may be used against you during your personal injury claim process.
First and foremost, you should refrain from posting information on social media about your accident. In particular, you should not post anything regarding your medical treatment or the extent of your injuries. It is natural to want to reach out to friends and family after being in an accident to let them know you are OK and to discuss injuries. While social media is probably the most efficient platform to keep our friends and family informed, doing so can potentially raise doubt about your injuries and adversely affect your claim. Normally, you will not know the extent of your injuries or whether future medical treatment will be necessary until days or even months after your accident. For example, if you post something on social media stating that you only suffered minor “bangs and bruises,” and you later discover that your injuries are more severe, an adjuster may use your post to support a denial of your significant medical treatment and related medical bills.
In general, you should refrain from discussing anything about your accident over social media. This includes avoiding comments or statements on social media about the at-fault driver, passengers, claims adjuster, information about your recovery or any other related information.
While you deal with your personal injury claim, you should limit your posts, photos and “check-ins,” especially if they may contradict your claim that you are injured and unable to perform your usual activities. For instance, you would not want to post pictures of you playing sports if you are claiming injuries that would prevent you from doing physical activity, even if that photo is from months before the accident. Insurance adjusters will use pictures to debunk or dispute your injuries to demonstrate that your injuries are not as serious as you are claiming.
In addition, be cautious when checking into places and events, as even the most innocent posts can be used against you. For instance, regularly checking in at parties, events or restaurants may call into question any claim you have for emotional distress, as it casts doubt on your inability to live your normal life. Be sure that your friends also refrain from tagging you in activities or photos that could be harmful to your claim, as their posts can also be used against you.
Insurance adjusters are becoming acclimated to the “social media world” and continuously use these sites to investigate claims. Adjusters will look for anything that helps them avoid taking full responsibility for your claim. With this being said, limit your posts, and, in return, you will limit your exposure.
If you have already posted something about your personal injury claim on a social media, you cannot remove the post or image. The removal of discoverable and admissible evidence may constitute a violation of the North Carolina Rules of Evidence. Essentially, the North Carolina Rules of Evidence provide legal guidelines as to what you can or cannot do with different types or forms of evidence that may be used at trial.
If you have a personal injury claim that goes to trial, deleting posts on social media that would be relevant to your case could constitute “spoliation.” Spoliation essentially occurs when you destroy evidence that you know or reasonably should know might be relevant to a legal claim or case. If you are found to have destroyed potential evidence, then you could face sanctions or contempt of court.
The best thing to do is refrain from making the post at all; however, if you do mishap, be sure to save all pertinent posts on a USB drive or make printed copies. Therefore, if you do go to trial and your posts are found to be pertinent, you will at least have the posts in your possession.
Pursuant to the North Carolina State Bar, an attorney may not request that their client delete a post from social media unless they properly preserve the evidence. Meaning, if the post is found to be relevant to your personal injury claim, then an attorney should save the post to a USB drive or make a printed copy. Furthermore, if your attorney advises you to delete a social media post that is deemed relevant to your claim, he or she could face sanctions from the State Bar or from a presiding judge.
Lastly, the North Carolina State Bar governing attorneys has adopted the view that, in order to provide competent representation to clients, as required by rule 1.1 of the NC Rules of Professional Conduct, the attorney must advise the “client of the legal ramifications of existing postings, future postings, and third party comments.” N.C. Ethics Op. 5, #1. In other words, your attorney has a duty to warn you of the potential negative effects of posting about your accident on social media.