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No Expectation of Privacy on Facebook for Personal Injury Litigants

May 9, 2012

On the topic of social media, this blog has already covered the judicial precedents being set in the state of Pennsylvania with regard to insurance companies probing plaintiffs’ Facebook profiles. As judges become more familiar with the sensitive nature of an individual’s social media profile page, some courts have ruled in favor of protecting the privacy of individuals. However, suffice it to say that there really should NOT be an expectation of privacy regarding content posted in public forums.

In a previous post, we covered Facebook and cell phone usage by jurors during trials and the fact that judges have to warn jury members explicitly against using social media during a trial. Many have gone so far as to collect jurors’ cell phones at the beginning of proceedings each day.

What we have not yet focused on is the fact that Facebook and Twitter can be damaging and even detrimental to a plaintiff in a personal injury suit. Surely we all know people who “overshare” on social networking sites, but this can really come back to bite someone if he or she is injured by a negligent party and doesn’t understand how a simple photo or statement can be perceived as damaging.

As many legal blogs note, it is now common practice for law firms to conduct Internet searches on those seeking to file a personal injury lawsuit. As a Texas blog notes, if a young man is injured in a car accident late at night through no fault of his own, but his Facebook profile is full of photos of him drinking at bars with his friends or his Twitter feed is full of boasts about how fast his car is, attorneys will be very hesitant to represent him in an auto accident case. If plaintiffs’ attorneys have the ability to find this damaging information, surely the other side would find it too.

Even more disastrous would be a plaintiff claiming to have severe injuries despite photos showing him or her playing sports or carousing with friends after an accident. It would be immediately perceived to all parties involved that this person is lying about the extent of his or her ailments and his or her claim would be damaged.

Another growing problem is the interconnectedness of these social media sites. It is no longer the case that a Facebook profile only shows information from the owner of the page. Rather, it is full of photos taken by other people, comments on those photos, tags in notes, and messages from friends and family members. All of these can be just as dangerous as one’s own posts: they’re just as visible and just as potentially damaging.

The advice from the experts (even if it seems like overkill) is to assume everything you post on the Internet is fair game for discovery (the time before trial when attorneys are compiling evidence). The common practice for most social media users is to hide behind his or her privacy settings but this is never a surefire way to ensure true isolation from unfriendly eyes in this day and age. If you’re even in doubt about whether something is appropriate to post to Facebook or Twitter, err on the side of caution and keep it to yourself.

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