Social media such as Facebook, Instagram and Tik Tok are more frequently becoming a source of information for legal matters. In the writer’s experience, defendant lawyers and insurers are increasingly starting to obtain material posted online to use against injured persons and to defend claims. This is not limited to what a person posts on their own profile and includes things such as material posted on community and group pages or material posted by family and friends.
The writer acknowledges that in many cases, a post on social media is an idealised and inaccurate representation of what a person might be suffering in real life. However, it is important to recognise that social media posts are very often considered relevant to a claim and claimants may have an obligation to disclose any photos, videos and comments posted even if their account is set to private and even if a post is later removed. Persons who post online only to later delete a post may also be seen as deliberately attempting to destroy or hide evidence, which can result in an adverse inference being made against them.
Claimants should be mindful of what they post online and consider whether or not such posts are an accurate reflection of their circumstances before posting. A post, however inaccurate or fantastical, is still a snapshot of how an injured person has been living their life. A post of a person participating in a physically strenuous activity and having fun can make it difficult for a court to accept any claims that a person is physically incapacitated and suffering from depressive symptoms.
Setting accounts to private or otherwise attempting to hide online information is not a solution to preventing defendants from accessing such information. In Findlay v Queensland Folk Federation Inc & Ors [2016] QDC 087 the Queensland District Court ordered a claimant to accept a friend request from an insurer to allow the insurer to access and view their Facebook feed. In the eyes of the court, access to a contemporaneous record is likely to supersede concerns about an invasion of privacy. In the writers’ view, social media and a person’s online presence generally should be treated the same as making an announcement to the general public, with the only difference being that the announcement is made and preserved online for defendants to easily access and see.
Injured persons should also be aware that social media is not the only public record that may exist online. Memberships and achievements in any social clubs or sporting clubs can be recorded on club websites and also provide snapshots of a person’s post injury life.
Key takeaways
While we all might be tempted to portray ourselves at our absolute best online to maximise likes and engagement:-
- a person’s online presence can be used as evidence of their injuries, or alleged lack thereof;
- access to social media records can be ordered by a court and may supersede concerns about invading privacy; and
- injured persons should carefully consider whether or not what they post online is an accurate reflection of their circumstances compared to what is reported to their doctors and to the parties they are claiming compensation against.
In the writer’s view, the best online post is one that is an honest and genuine representation of oneself and not an exaggeration or caricature. In a world where personal information is often treated as a commodity and with little concern for privacy, the second-best online post may be no post at all.
