We have represented hundreds of people who have successfully obtained lump sum compensation for personal injuries and disabilities caused by negligence. In our experience, we often find that people do not realise the extent to which their social media presence / activity can negatively impact compensation claims.
We routinely advise our clients that it is wise to exercise caution whenever using social media, especially when litigating claims for compensation (personal injury).
Posting of certain information can be misconceived, misconstrued or misinterpreted – and there is no legal barrier stopping that information from being used against you in court. Even if it does not form part of the evidence in court, posting of certain information may colour a defendant insurer’s impression about whether you may be exaggerating the true nature and extent of your injuries and disabilities. In turn, this can negatively influence the chances of reaching settlement and / or the amount of any settlement offer.
We have found that ceasing, or limiting, activity on social media is even more important when psychological injury / mental harm is claimed, because it may be more than your photos and locations which conflict with your claim (e.g. your word-posts, your apparent mood, and your apparent outlook). The frequency of posts, or total average time spent on social media, may also conflict with expert evidence regarding your injuries and disabilities, depending on the circumstances of your claim.
We recognise social media posts can often be taken out of context and that it is unfair to suggest that injured people cannot have their “good” days and “bad” days. In fact, courts expect that claimants should always try to mitigate their own losses by attempting to re-join the workforce, or by trying to get back into social and recreational activities, etc (if they are able).
We would like to give the following general advice and to illustrate some of the social media pitfalls which may hinder the success of compensation claims:
- the best way to avoid online information being taken out of context is to temporarily cease activity, or to quit social media altogether (until your compensation claim is resolved);
- remember that it is not just your active posts and uploads which can be seen. In terms of your passive presence on social media, you may also be innocently tagged in photos and checked-in at locations by your friends and other users. Likewise, tell your friends not to tag you in any photos, or check you in at locations;
- even if you are having the odd “good” day (e.g. prescription medications are masking the worst of your everyday symptoms), never post photos of yourself doing things which you have claimed you are unable to do;
- never share any information about any legal or medical advice given to you and never share information about the process, or progress, of litigation;
- never post, or share status updates regarding your recovery, your mood, or your outlook. It is natural to try to project a positive outlook which may suggest that you are doing better than you actually are – and this is often taken out of context;
- depending on the nature of your claim, even using social media often, or for long periods, can contradict the nature and extent of your injuries and disabilities.
- There is no evidence to suggest that instant / direct messaging applications are safe or private and these should be treated with the same level of caution as social media profiles and pages.