Most of us participate in some form of social media, such as Facebook, Twitter, or Instagram. But because social media makes it so easy to keep in touch with friends, family members, and colleagues, we often forget that most of what we post to these sites become public record. There is no true privacy online, and even if you later delete an embarrassing (or incriminating) message, there is no guarantee it has not been stored somewhere else, waiting to be used against you at a later time.
One place an unfortunate social media post may work against you is a personal injury lawsuit. In a typical personal injury claim, the plaintiff seeks compensation for economic damages–i.e., medical costs and lost wages incurred as a result of the defendant’s negligence and noneconomic damages for things like “pain and suffering.” The defendant, in turn, will look for any evidence to minimize a potential damage award, and if possible to prove the plaintiff suffered no genuine injury to begin with.
Social media can offer a bonanza of exculpatory evidence to an aggressive defendant. For example, let’s say a plaintiff is in a car accident and sues the defendant for negligence. The plaintiff alleges that she suffered permanent injuries in the accident and is therefore unable to perform the same recreational activities that she could before the accident. If the defense subsequently finds a picture on the plaintiff’s Facebook page of her kayaking two weeks after the accident, that would obviously not be helpful to the plaintiff’s case.
Orr v. Macy’s Retail Holdings, Inc.
To offer a more concrete example, a federal judge in Savannah recently allowed a defendant to subpoena a personal injury plaintiff’s “profile pages, Facebook friends, timeline posts, photographs, updates, comments, and messages” in order to undermine her claim for damages. The defendant operates a retail store in Savannah. The plaintiff alleges that she was injured when a door in the store’s fitting room fell on her.
The defendant argued the plaintiff’s Facebook posts are relevant to her “allegations of pain and suffering, including her allegation that her active lifestyle has been curtailed by her pain.” The judge noted that some courts require a defendant to make a “threshold relevance showing,” that is demonstrate the likelihood that there is relevant evidence in the social media account by first examining a plaintiff’s public profile. But here, the judge felt such a threshold showing was not necessary. Since the plaintiff’s personal injury claim centers on her “physical condition” and “quality of life,” all of her Facebook posts following the accident “are relevant and discoverable” by the defendant.
Citing another decision by a judge in Florida, the court noted that “social media content is neither privileged nor protected by any right of privacy.” In other words, if you have been injured in an accident, even one caused by the negligence of someone else, you need to exercise extreme caution in posting to social media. Even a seemingly innocent picture or comment may give a judge or jury reason to reject your claim for damages.