In a personal injury case, lawyers will look for any evidence they can find to support or disprove your claim, according to which side they are working for. Your lawyer will need to prove that your injuries are as serious and life-changing as you say they are, but it's in the other party's interests to disprove your claims – and social media could play a critical role in this process. Find out how personal injury lawyers increasingly use social media as evidence, and learn more about the steps you can take to make sure your online activities don't derail a personal injury case.
Why social networks offer useful evidence
For many Canadians, social media has become a way of life. In 2012, 64 percent of people in Canada had a social network profile, and, in the same year, those people spent 32 percent more time on these sites than they did the year before. Social networks offer an opportunity to share experiences, connect with friends and have fun, but these sites also hold a wealth of data.
Social network users leave a trail of digital information behind them. Every time they check in, update their status or leave a comment, these sites track and record their movements, and a lot of this information is visible to other users. To a lawyer, a seemingly innocuous photo can undermine your claim, and your profile often offers up a time, date stamp and location for every activity you undertake online.
In a personal injury case, it's often difficult to prove how serious your injuries are. While a doctor can accurately diagnose an injury, it's often harder for a medical professional to quantify what this means to your life. As such, subjective evidence becomes more important, and a lawyer may try to draw a conclusion from what you say and do on social media sites.
How a lawyer may use social media as evidence
In some personal injury cases, lawyers have used social networks to prove that the injured person's evidence was inconsistent.
In one case (MacIntyre v. Pitt Meadows Secondary School, 2010 BCSC 256), a man filed a lawsuit against the school for injuries sustained in three separate incidents. The plaintiff claimed that the accidents caused permanent injuries that interfered with daily activities.
Along with other evidence, the court used photos from a social network to prove that the plaintiff's claims were inconsistent. This evidence included photos showing the plaintiff kneeling, playing football, and even curled up in an electric clothes dryer.
These cases are increasingly common and show how powerful your social media profiles are.
The extent to which a lawyer can get access to your social media accounts
The issue of social media evidence is increasingly complicated in Canada and has drawn debate from experts about the balance between justice and personal privacy. In theory, if your social media profile contains evidence that could influence a court's decision, the other party's lawyer can ask to use the material.
When it comes to obtaining information through social networking sites, certain professional ethics certainly come into play. For example, in British Columbia, the Code of Professional Conduct sets out clear rules about how a lawyer can seek information from a potential witness. These rules also make it clear that a lawyer must make his or her intentions clear when gathering evidence.
In this case, it would break the Code to use deceitful tactics to get photo evidence from a social networking page by making friends with friends of the plaintiff, solely to get access to his or her page.
That aside, it's clear that Canadian courts will sometimes accept social media information as evidence, even if the person's account was private and did not have any public information on it.
Advice for people filing personal injury claims
Some lawyers will tell you the safest way to stop damage from a social media account is to delete it. That aside, many Canadians will not heed this advice. If you are involved in a personal injury lawsuit, some common sense advice applies.
- Make sure your privacy settings only allow friends to see your pages. While this won't stop a court order, it cuts the likelihood that a friend of a friend will see something he or she shouldn't.
- Remove photos or comments from your profile that could, in any way, misrepresent your injury. Look at every post through the eyes of a judge and decide what it may suggest.
- Try to refrain from using these sites while a case is open.
Above all, you should make sure that any personal injury claims are honest and accurate. In this case, it's unlikely that a social media profile could counter your claim.
Many Canadians now live their lives through social media, but it's important to consider how the information you post could affect your life. For more advice about how your social media pages could affect a personal injury case, talk to your lawyer.