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Published: 26 May 2011
Author: Ryan Carlisle Thomas

Social media and injury law

How Facebook, Twitter and other social media sites may be used as evidence against a claim for injury compensation

With the evolution of social networking sites such as Facebook and Twitter where users put their lives on show for everyone to see, from 'tweeting' what they are having for dinner to 'posting' pictures from a recent trip to Thailand. The proliferation of social media in our lives is part of a cultural shift in the way we interact with one another. But personal injury victims can be caught unawares by seemingly innocent uses of social media, some of which might seriously prejudice their claim for justice and compensation in the courts. The use of social media as evidence against the legitimacy of a plaintiff's claim to serious injury is growing. And this use is throwing up questions faster than they can be answered.

Social Networking and its evolution

I am fascinated by the way in which social media and in particular social networking has been entrenched in our lives. Facebook, a company which had its genesis in a Harvard University dorm room is now tentatively valued by Forbes at $23 billion dollars. From its humble beginnings it has now expanded into a multi-billion dollar corporation operating out of Palo Alto, California.

Similarly, Twitter has evolved from a social-networking service that prompts users to 'tweet' about their lives via a short message, much the way we would send an SMS to someone via our mobile phones. This simple idea envisaged by Founder Jack Dorsey has become a phenomenon. One only has to look at the news of Osama Bin Laden's death and the way it spread into the 'twitter-sphere' by the users of the social networking site. As the below graph depicts, Twitter was bursting at its seams, as the news broke of Osama's death, with an extraordinary '5000 tweets per second.'

Tweets per second, Evening of May 1, 2011

What can be said of Twitter and Facebook is that these social platforms are connecting people in ways no one could have foreseen. For those of us that were unlucky not to get an invite to the Royal Wedding, we would only have to log onto Twitter or Facebook to get our fix of all the pomp and tradition that was emanating from Westminster Abbey that day. While Facebook, Twitter and other forms of social networking set out to inform us about what is going on in the world, what is often overlooked by people who may be seeking compensation for a workplace or traffic injury is that their unwitting use of social media to stay connected with friends and family may be undermining their claim on financial compensation.

Personal injury lawyers are increasingly having to wrestle with the implications.

Hypothetical example:

Nick is a 25-year-old worker with a back injury that he suffered in the course of his employment as a butcher. He received a generous section 98C payment and is seeking common law damages for his injury sustained at work.

As a result of his injury Nick has been unable to sustain the active social life that he enjoyed prior to his accident. One way in which Nick is able to maintain his social network is via social networking sites.

He frequents these sites to keep in touch with his high school mates and with his family living interstate. In his serious injury application, Nick submitted an Affidavit stating that as a consequence of his injury he now leads a withdrawn and socially limited life and is susceptible to depression.

While this is true, Nick is keen to make an effort to help celebrate his best mate's birthday and they have organised a camping trip in the Dandenong Ranges. A keen photographer, Nick takes many photos of the camping weekend and decides to post them on Facebook.

A diligent lawyer for the defendant has come across these pictures after conducting some investigations and has accessed Nick's Facebook page, which has the pictures plastered all over his profile. The pictures show him and his mates collecting fire wood, fishing, setting up tents and walking around the bush, all activities which would make Bear Grylls proud. The defendant's lawyer has now procured probative evidence, that Nick's back injury might not be so serious afterall.

This could have serious consequences of proving that Nick does not have a serious injury within the meaning of the Act and any chance he may have had to common law damages could disappear as quickly as the fish Nick was trying to catch.

How exactly does this prejudice a client's case?

Specifically, if used as evidence, the Facebook pages could be used to demonstrate that the client, whether intentionally or not, is not transparent in his Affidavit and in his duty to the court not to mislead. Lawyers acting for Nick know that he is truthful and honest in his instructions, but this piece of evidence may well be the opening defence of the defendant's barrister unravelling of the case.

Additionally, a Judge will have to decide whether they believe the plaintiff's evidence. The judge may be convinced that the plaintiff has a back injury, but how can they be sure that it is a serious injury within the meaning of the Act? Nick was out camping with his mates, he was physically coping, if the photographs taken are any evidence. The injury might not be so serious after all.

The point is that the onus is on the plaintiff to prove that he or she has a serious injury. Such evidence can make the task even more arduous than it already is. A fairly strong case for the plaintiff has suffered a significant blow now that the judge is unsure himself.

Pre-trial discovery and the defendant's right to information

Generally, an insurer's lawyers have the right to seek discovery during the pre-trial stage of litigation. The types of evidence sought include:

  • medical records/reports;
  • tax records;
  • claim forms;
  • employer records;
  • payslips; and more recently
  • access to social media such as Facebook and Twitter accounts.

I am not aware of any caselaw or guidance from the Court with regard to discovery and/or social media. I know that the Australian Law Reform Commission has recently posted papers on social media. However, the grounds on which social media can be demanded as part of discovery is yet to be fully explored and tested within Australia.

From a comparative point of view, there have recently been a couple of cases on the issue of pre-trial discovery and social media that have been heard in the New York Court of Appeal. It would appear that as a result of these cases, the Courts are allowing access to material on social networking sites provided that the information sought is relevant and the request falls with acceptable discovery standards.

Invasion of privacy or legitimate accountability?

It is common for a defendant's legal team to go to great lengths to discredit the testimony of an injury client in any possible way. One of the most common means is to put a client under surveillance. In what many would call an invasion of privacy (a notion canvassed by former Associate Justice of the Supreme Court of the United States Louis Brandeis and his close friend Samuel D Warren, Proxime Accessit of Harvard Law School 1877, in their Harvard Law Review article "Right to Privacy" 1), it has became easier for the defendants to further push back the boundaries of privacy by actively pursuing details of a person's social life through their use of social media.

In terms of privacy, Facebook along with other social networking sites have a policy that informs the user that the company cannot guarantee that only authorised users have access to their information. So technically speaking, the user does not really own their Facebook page or twitter account and this means it is open to be publicised and scrutinised by a defendant's lawyers.

Gaining unauthorised access to a person's social networking accounts is not such a hard thing to do. It is made easier if a user has not taken steps to set stringent privacy restrictions on their account. Even the most prudent and technologically-savvy forget to do this. It could be argued that accessing these sites is an invasion of privacy; similarly, it is no different than having private investigators shadowing a client's movement all day long. To many, this would seem to constitute an invasion of privacy, however, our Courts suggests otherwise.

Some practical advice

Referring to our case example, there are really two avenues we can pursue. The first being that we should advise our clients to shutdown all forms of social networking and the other is to keep them activated.

In terms of the hypothetical example, if Nick had been advised in the early stages of his claim to shutdown all forms of social media, would this have potentially ruled out a threat to the veracity of his evidence? At first glance, the answer is yes. However, who is to say that Nick's trip to the Dandenongs would not have been captured on film by investigators, or extracted in the witness box by counsel?

While it may be a practical and prudent measure to advise an injured client to cease all social media activity immediately, it is legitimate also to take into account the social cost of this course to the client, who is often reliant on social networking in order to stay in touch with family and friends. Most injured clients attest in their Affidavits that they feel isolated and vulnerable because their injury effectively keeps them isolated in the house day after day and that their opportunity for social engagement is seriously curtailed.

With their relationships under stress, they then become prone to many forms of depressive illness. Certainly, it is our experience that many clients come to rely on social media to stay connected. Are we not condemning a person already suffering from injury to a life of increasing social isolation? What practical guidance can be given, that is clear and unequivocal, that would allow a client access to social media, but within certain limitations?

Conclusion

Social media is a growing source of discomfort for all those working for justice for injury clients. The solutions that at first hand appear to be acceptable unfortunately carry profound personal and social implications for a person's well being. While plaintiff law is struggling to catch up with social media in Australia, lawyers for the defense are increasingly getting open access to sometimes unfairly used social media evidence.

1. S Warren and L Brandeis, 'The Right to Privacy' (1880) 4 Harvard L Rev 194.

Ryan Licastro works in the area of injury law at RCT, advising mainly on compensation for workplace injuries and accidents in public places.