How your social media posts could affect future personal injury lawsuits

Oxford OPP were contacted in January by a parent who had discovered a person was communicating with their child over the Internet in an inappropriate manner. Nico De Pasquale Photography/Flickr

Nowadays, we are no stranger to the notion that everything we do on social media can have a great effect on our offline lives.

From examples of employees who have been fired thanks to inappropriate Facebook rants, to people who have had their homes robbed after advertising on Instagram that they were away, the real-life repercussions of our love for social media continues to grow.

“The law is playing catch-up with social media and technology,” said Maia Bent, president of the Ontario Trial Lawyers Association and partner at Lerners law firm.

It has become increasingly common for defence lawyers to interpret social media data to dispute personal injury and workplace lawsuits. But legal experts say the courts are still trying to figure out how that information should weigh into a ruling.

“When you post photographs [on social media] it’s kind of like having a photo album; but, in the old days, someone wasn’t allowed to go into your house and go through your photo albums. When you are in an injury action pretty much everything you do is an issue – because people are claiming that their physical and emotional health has been affected. So the defence has been going to the courts and asking for disclosure of that kind of material.”
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Take for example B.C. resident Sarah Tambosso – in 2015 a B.C. Supreme Court judge denied her claim for hundreds of thousands of dollars in damages, after claiming two car accidents caused severe emotional trauma.

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According to a report by The National Post, Tambosso’s case was destroyed thanks to evidence from her Facebook page – pictures showing her at parties, drinking with friends and performing karaoke. The judge said the Facebook posts were “completely inconsistent” with someone suffering from trauma.

READ MORE: In a crash? Social media posts could impact your claim

The problem is – we don’t always show a “real” image of ourselves on social media.

“People tend to post positive pictures of themselves, usually in social situations, smiling. Because if you point a camera at someone they are going to smile – what they don’t show is the pain they are in, or maybe that they had to go lie down after that picture was taken,” said Bent.

For example, someone suffering emotional trauma may not want their friends and family to know the degree in which they are suffering – so they choose to post content that makes them appear happy. Or someone may post an entire album of pictures showing them having fun at an event – but that could have been the only event they attended that year.

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“This is where the distortion of the reality is very worrisome,” Bent said.

What you need to know

According to Bent, if the defence wishes to introduce social media posts into evidence, it’s up to the judge to argue the weight that evidence should attract.

For example, if it’s one or two images over three years, it wouldn’t attract very much weight to the case. However, if there are multiple posts or images that evidence would likely warrant more weight, because it would start to look like a pattern.

It’s important to note that privacy settings may not protect you in legal cases.

Bent explained a judge can order a plaintiff’s Facebook profile be introduced into evidence, even if all of the posts are set to private.

“There has to be a threshold of relevancy. They are not allowed to go on a fishing expedition through all of your material – but if there is some evidence that there is something there that is relevant, the court will order it to be introduced or at least have it be reviewed,” she said.

So is there anything you can do to protect your credibility in the event of a future lawsuit?

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Bent said the best advice is to follow the ol’ “think before you post” mentality.

In the event that you are in an accident, you might want to avoid posting about the incident right away. For example, if you were in a car accident and posted an update like, “I was just in an accident – thank god no one was hurt,” but an injury presented itself later – that could be used against you in court.

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