With Facebook and other forms of social media having become such an intrinsic part of our daily lives, it is not surprising that insurance companies take great interest in the Facebook and other social media accounts of persons who are bringing claims for personal injury compensation. The hope is that in amongst their posts, the insurer will find photos of the person water skiing, mountain climbing, or anything else that is inconsistent with the disabilities the injured person says they have as a consequence of the injury.
This is in principle no different to an insurance company obtaining video surveillance of an injury claimant, except of course it requires much less effort, and cost.
Fortunately the instances of such ‘gotcha’ moments are much rarer than they are perhaps be popularly understood to be, but this potential for social media content to be used in a compromising way should be borne in mind by anyone making a claim for injury compensation.
Privacy settings are not a solution to this. There is an instance of the Queensland District Court ordering a claimant for injury compensation to accept a friend request from an insurer to allow the insurer to access and view their Facebook feed (see Findlay v Queensland Folk Federation Inc & Ors [2016] QDC 087) . While this may seem like a gross invasion of privacy, Facebook content, even if private – actually, especially if private – is regarded for these purposes as something akin to a diary, and diaries, like any contemporaneous record, have always been of great interest to courts of law when making findings of fact.
Even in the absence of any type of fraud, posts that are quite innocent can have a disproportionate prejudicial effect. For example, the parent with a bad back who takes a moment to play with their child and is photographed doing so may find their claim prejudiced by the insurer’s access to such a post, even though they might spend a day in bed recovering from that brief exertion.
One approach for someone bringing a compensation claim could be to decide not to use any form of social media at all, private or not, but people have to live their lives. It is never a good idea to make decisions based on a compensation claim and after all, in insurance claims, as in life generally, honesty is the best policy.
But when making a claim for compensation it is at least worth bearing in mind that, when it comes to Facebook and other social media posts, they may be seen not just by the friends you have, but by the “friends” you don’t want.
