Six steps you can take to protect yourself on social media during your personal injury case
Today, social media is more prevalent than ever, and more and more of our clients report at least some degree of social media use. However, social media can have a profound negative impact on your case – if a defense attorney gains access to your account, he or she can use your own posts to cast doubts on your personal injury claims. At best, this slightly lowers the damages you can retain, but at worst, it can completely destroy your claims and prevent you from recovering anything at all.
Follow the guidelines from our attorneys below to protect yourself from accidentally jeopardizing your case.
1. Don’t Post Anything Online
The biggest and most important piece of advice we give all clients is to completely avoid posting on social media. Even posts you think are innocuous may be used against you, as they have for many of our past clients.
One such client, a young man who suffered debilitating leg fractures after being hit by a forklift, had posted pictures of himself smiling at a family barbeque while his case was still ongoing. The photos didn’t reveal that our client was in pain, had limited mobility, and could no longer work in the same capacity. But that didn’t matter to the defense. Any scrap of evidence they can use to counter our claims of pain and suffering will be brought up, so it’s best to simply prevent them from ever gaining access to that ammunition.
Even a private account does not guarantee the defense will not ultimately gain access to your posts. A clever defense attorney knows how to ask about your social media use at a deposition. If you admit to having posted online since your accident, you will likely be told to share your account with the defense, opening your case to new risks.
The best way to avoid these situations is to deactivate your social media account – it erases the temptation altogether. We know this isn’t always plausible. Many people use social media to keep up with friendships or distract themselves from the pain of their accidents. If deactivating your account feels too isolating or difficult, the next best thing you can do is stop posting.
2. Check Your Privacy Settings
Though a private account will not fully stop determined defense attorneys – nothing online is ever truly private – you can at least make it more difficult for them to gain access. Recent case law has granted a higher degree of protection to those with private social media accounts, so you’ll want to make sure that all your accounts are set to private. These settings look different depending on the platform – on Instagram, it’s called a “private account,” but on TikTok, it’s referred to as “Friends Only.” Be sure to go through all your accounts and check the correct privacy settings on each one.
While public social media accounts are available for anyone to view, private accounts can only be accessed if a judge rules that there is a legal reason to do so. Attempts to access private accounts without proper evidence for doing so – unofficially called “fishing expeditions” – will likely be struck down by a judge. However, as soon as the defense has reason to believe that you’ve been posting on those accounts, that decision may be reversed.
In addition to your account settings, make sure that your location services are turned off as well. Incorrectly or not, the defense will try to extrapolate information based on your location. If your account shows that you were at a gym, for example, the defense may try to use that as evidence that you are well enough to do physical activity – even if you were only sitting in a car to help pick up a family member.
3. Don’t Make “Anonymous” Accounts
You may think that creating a new account under a different name or handle will protect you from being discovered by the defense. It will not. Defense attorneys have extensive methods they can use to find even the most secret accounts. Just as nothing online is ever truly private, nothing is ever truly anonymous, either.
One such method includes hiring investigators that specialize in social media. These investigators are experts on digging up a client’s entire social media history, along with the histories of friends and family. Our attorneys have seen the reports generated from these investigations before – often, they come in the form of incredibly lengthy documents, detailing every post, comment, and reply on one’s social media. We’ve even seen them uncover secret accounts from people who swore they were not using social media. These accounts, though under a different name, can still be traced back to you.
4. Ask Friends and Family Not to Post
Your friends and family do not need to be subject to the same social media restrictions as you, but you should still ask them to avoid posting anything about you for the duration of your case. This includes photos and videos with you in them, as well as tags or mentions. Even posts with you in the background can be incriminating.
For example, take a case we handled involving a young client who loved hiking. Though his injuries left him unable to hike, he still liked to attend the trips with friends, staying behind at their lodging while his friends ventured out. After one such trip, one of our client’s friends tagged him in a post about the trip. Though our client did not go on the actual hike and was not featured in any pictures, the tag from his friend was enough for the defense to mention this in court, using the trip to instill doubt about the extent of our client’s injuries.
5. Don’t Talk About Your Case Online
This doesn’t just apply to your own posts – comments and private messages may also be released, if allowed by a judge. When discussing your case, stick to more traditional channels like phone calls or text messages. Even if the defense tries to go after phone records, they’re much harder to obtain, as they require extremely specific and limited requests. Generally, phone records can only be accessed in a personal injury case if there’s a crucial unanswered question that only this specific phone record can clarify.
6. Don’t Accept Unvetted Friend Requests
It’s not uncommon for the defense to try and gain access to a private social media account through fake friend requests. We’ve seen clients accept these requests before, not knowing that the person on the other side of the screen was not who they claimed. Because of this, you should never accept a friend request unless you are certain of the other person’s identity.
This doesn’t just apply to you. You should also warn your friends and family to delete unknown friend requests. We once represented a student whose girlfriend had unknowingly accepted a friend request on her private account, which unintentionally gave the defense access to posts she’d made featuring our client. The posts weren’t enough to meaningfully affect the case – it still settled for $9,000,000 – but it does highlight just how far the defense is willing to go for surveillance.
Free Legal Consultation
If you have any questions about the impacts of social media or any other aspects of your personal injury case, please reach out to one of our seasoned attorneys for a free legal consultation. Block O’Toole & Murphy achieves landmark results for clients throughout New York and New Jersey, including a $110 million and a $53.5 million jury verdict.