How Defendants Use Social Media
Imagine spending months partially recuperating after an accident. Your injury prevents you from going to work and enjoying your favorite hobbies, and has left you emotionally distraught and worried about your future or in chronic pain. Your personal injury claim includes damages for pain and suffering, mental anguish and loss of the ability to lead a normal life as you did before you were injured. Now the defendant accesses photographic images from social networking sites that show you spending time with friends and family, going out to the beach or parties and even smiling. Their response? Clearly you aren’t as depressed or as injured as you claim, since you appear to be leading a “normal” life as depicted by the photographs.
Social Media Is Discoverable by the Defense
In Florida, the 4th District Court of Appeal has held that generally, photographs posted on a social networking sites are neither privileged from discovery nor protected by any right of privacy, regardless of any privacy settings that the user may have established on the social media site limiting who can access the photographs. The Appellate Court in Nucci, upheld a trial court’s order compelling the injured party to produce the photographs she had posted for two years prior to date of her alleged slip and fall accident to the present as being reasonably calculated to lead to the discovery of admissible evidence. Nucci v. Target, 162 So.3d 146 (Fla. 4th DCA 2015).
In addition, if you destroy photographs or delete them from the site, you can be sanctioned for destruction of evidence and even possibly have your case dismissed.
Managing Your Social Media
The best course is to avoid posting any photographs to social media after your accident. If you aren’t willing to give up social media, it’s vital that you take every precaution to avoid any of your posts or photographs from being misconstrued. These include:
- Setting your privacy to the highest levels; i.e., only your friends can see what you post. Do not allow anything to be viewed publicly.
- Carefully screening all friend and follower requests. Don’t accept requests from strangers, or anyone who claims to be a “friend of a friend.” They could be an investigator, looking for damaging information.
- Not allowing anyone else to post to your social media accounts; i.e., tagging you in photos, etc. Adjust your settings so that you have the option of approving any “tags” or posts, and control who sees what is posted to your page. Ask friends and family not to post any photos of you to social media.
- Never posting new photos of yourself, regardless of the setting or how you appear in them.
- Never talking about your accident, claim, or anything related to your case on social media.
Social media is an important part of our lives, but when you are involved in a personal injury claim, it can be detrimental. Talk with your attorney and follow his or her advice, or risk losing our case.
James D. Wilkerson, Jr. is a Board Certified Civil Trial Attorney who specializes in the representation of victims of accidents that have caused serious permanent injuries. My office is in West Palm Beach. If you would like more information about the firm or if you have a claim that you would like to discuss, please visit my firm’s website at www.pbcinjuryattorney.com
or call me at (561) 682-9060
. The consultation is free. If we can help you, you never owe us for costs or attorney fees unless we make a monetary recovery for you.