According to a recent study by the Pew Research Center, eight out of ten American adults online have used social media websites such as Facebook, Instagram, Twitter, and LinkedIn at some point in their lives.[1] Social media and networking sites allow users to stay connected with family, friends, and professional colleagues and keep informed on current events. Nearly half of American users relied on social media as a news source for information regarding the 2016 presidential election.[2] Two out of three adults online have a profile on at least one social media site.[3] Whether we are posting about personal events with family and friends, seeking employment, or using social media to simply take a mental break from work, Americans are sharing a lot of personal information online about ourselves, our loved ones, colleagues, and acquaintances.
Increased use of social media has led to a rapid decline in the user’s relative anonymity and privacy. Social media makes it easy to share intimate details of all aspects of life, so using social media without considering how it could be used by big business can be potentially harmful. This is particularly true for people who have an open personal injury claim. More and more, we see social media data being used and exploited by insurance companies against people who are recovering from traumatic injury. As a result, social media is playing an increasingly influential role in litigation involving personal injury cases.
Be aware that when you post online, you do not retain possession or control of the information once posted. According the terms and conditions of use for most social media sites, any information posted online becomes the property of the website or app. Once posted, a site may share or release the information with a third party, including an insurance company.
Information posted online is not protected by assurances of privacy from the social media website or the attorney-client privilege. Insurance adjusters and defense attorneys will use anything they can find to attack the credibility of an injured person and undermine their claim.
Even before a lawsuit is filed, insurance adjusters routinely troll the internet searching for photos and status updates showing the injured party engaged in physical demanding activities (think: dancing, hiking, rock climbing, and even playing with grandchildren). This can become fodder for the insurer to try to discredit the injuries claimed. Comments and posts by friends or family may also be used to embarrass the injured person or demean their character (think: references to partying, goofy photos, or angry or emotional status updates). Websites and apps such as Foursquare and Facebook that track an individual’s movement or lets them “check-in” to locations can also provide information about a person’s activities that can be used to question the validity of their injuries.
Since most social media sites save and archive all information posted by the user essentially forever, comments about a sore neck or back made any time prior to the injury can be used to undermine a claim. What’s more, after a lawsuit is filed, a defense attorney can obtain a court order requiring an injured person to turn over all archived social media data, giving the defense attorney and insurance company unfettered access to your archived online shopping habits, personal contact with friends and family, and comments on other’s photos and posts. Even private messages are fair game.
While certain sites like Facebook permit users to control and restrict the availability of their personal information online through the use of privacy settings, many users don’t take the necessary steps to protect themselves and most are challenged when it comes to managing those settings. About half of all social media users report at least “some difficulty” in managing privacy controls. Interestingly, users with higher education (college graduates and above) are more likely to report difficulty in managing the privacy controls for their online profiles, while those with less education report less trouble.[4] Regardless of an individual’s privacy settings, any personal information, including pictures, status updates, comments, shared links to other websites, and so on, may be accessible to third parties like insurance companies, without the user’s knowledge or consent.
For our clients who use social media, we advise the following:
- “Go dark” – refrain from using social media entirely while your claim is open. Ask friends, family, and co-workers not to tag you in photos or mention you in comments until your case resolves. Encourage them to also increase their own privacy settings as a good way to keep their own information private.
- Set your privacy settings to the highest levels, where only the people you allow can see your information. (For example, select “Only Friends” under the “Search Visibility” profile option on Facebook, remove your “Interests,” and uncheck the box for “Public Search Listing” in your internet privacy settings for Google.)
- Do not delete social media accounts or any you information posted prior to retaining an attorney. Insurance defense attorneys may accuse you of destroying potential evidence in the case.
- Do not post or send messages or photos about your injuries, treatment, or the cause of your injuries.
- Do not accept friend requests from anyone that you do not know until the case resolves. Defense attorneys have been known to use persons not directly involved in the case to gain access to an injured person’s social media sites through “friend requests” and the like.
- And finally, adopt our motto: “Dance like no one is watching. Post on social media like it will be used against you in court.”
[1] Pew Research Center, November 2016, “Social Media Update 2016”
[2] Id.
[3] Pew Research Center, February 2012, “Privacy Management on Social Media Sites.”
[4] Id.
