Social media use continues to increase. According to the Pew Research Center Social Media Fact Sheet, 74 percent of adults who use the Internet also use social media sites. However, using social media can have disastrous effects on a personal injury claim in Colorado.
Proving a Colorado Personal Injury Claim — Then and Now
Plaintiffs who claim to have sustained personal injuries typically are seeking compensation for the expenses related to the injury (economic damages) as well as damages for the resulting pain and suffering (non-economic damages) that they sustained. To prove these claims, they will usually call on a variety of witnesses, including medical experts, family, and friends who can testify about the claimant’s injuries and pain.
The defense counsel is tasked with presenting evidence suggesting that the plaintiff’s damages are not nearly as severe as claimed, or maybe don’t exist at all. Before the Internet, a defendant would try to disprove a loss-of-enjoyment claim through the use of photographs and written records, such as phone records or credit card statements documenting a vacation or the purchase of sports equipment or getting firewood delivered. Sometimes the defense counsel would hire a private investigator to observe and document the plaintiff doing something that the lawsuit claimed he or she could no longer do.
But nowadays, all defendants really need to do is start poking around on their Facebook feeds.
In 2015, Slate published a story about a personal injury plaintiff who claimed that a rear-end collision left her with chronic pain and loss of enjoyment of life because she could no longer dance or wrestle with her brother as she once did. However, Facebook pictures were introduced in court depicting her dancing and being lifted into the air by her brother after the accident. Although the plaintiff testified that the photos were posed, the judge didn’t buy her argument and ruled that the pictures were evidence that she was enjoying life just fine, whether the pictures were faked or not.
But What About Privacy Settings?
Although social media users frequently believe that their profiles are private and should not be subject to discovery during litigation, courts generally find that “private” is not necessarily the same as “not public,” according to an article published by the American Bar Association (ABA).
Judges are now frequently allowing the discovery of social media content in personal injury cases. When content is shared, even among a limited number of specially selected friends, the party has no reasonable expectation of privacy with respect to the shared content. In other words, the purpose of social media, which is to share content with others, erases any expectation that the shared content will remain private.
Main takeaway: Those involved in a Colorado personal injury lawsuit should think twice before posting a status update or photo. Better yet, they should consider suspending all their social media accounts, or at a minimum not accepting any new friend requests until after their case is settled, and asking friends and family to avoid posting anything about them as well.