Using Social Media in Court Against You
By Toronto Personal Injury Lawyers
While insurance companies will often tell you that they are there for you when you need them most, the plain truth is that if you are involved in a car accident and sue the at-fault driver, an insurance company will nearly always step in to defend the claim. In these circumstances, the notionally friendly insurance company becomes your adversary. Put simply, the insurance company is not always your friend. This is a fact you should always bear in mind when sharing information and pictures with your “friends” on Facebook, Twitter and other social media sites.
The case of Kourtesis v. Joris serves as a good example of how insurance companies may “creep” on a plaintiff’s Facebook profile to troll for information to use against you at trial.
Fotini Kourtesis, was one of the plaintiffs in Kourtesis. She was involved in a car accident as an 18 year old high school student. She was hit from behind and there was no question that the defendant driver was at fault. The main issue at trial was whether Fotini sustained sufficient injuries to warrant an award for damages for pain and suffering and loss of enjoyment of life.
As a result of the accident, Fotini claimed to have suffered injuries to her neck and shoulders as well as memory and concentration problems. As a result of these injuries, Fotini said, her social life had been ruined.
Facebook Photos Used in Court
In the middle of the trial, the defendant’s lawyers gained access to pictures of Fotini that she posted on Facebook. Possibly, the lawyer gained access through a Facebook friend of Fotini’s. The Defendant’s lawyers then got an order from the Court allowing them access to more pictures on Fotini’s Facebook account. The pictures showed, among other things, Fotini partying on St. Patrick’s day three months before the trial.
Fotini was given an opportunity to address the photos at trial and she provided an animated and detailed account of the times and places of the events depicted. The Court found that the pictures contradicted her allegations regarding her social life being ruined, and that her testimony with respect to the pictures completely undermined her claim to have suffered memory and concentration problems. Her claim for damages for pain and suffering was dismissed. In sum, the pictures and her explanations of those pictures sunk her case.
Insurance Company Access to Facebook Photos Not Automatic
Following the decision in Fotini’s case, insurance companies’ lawyers’ requests to access accident victims’ Facebook profiles have been met with mixed success. On the one hand, the Court will not likely ever permit an insurance company full access to a plaintiff’s Facebook profile as much of the information is private and not relevant to the law suit. On the other hand, Courts are willing to conclude that there are likely relevant documents or pictures on a private Facebook account based on the nature of the services Facebook provides.
It seems that a plaintiff in a lawsuit has an obligation to disclose and produce relevant photos and documents on a Facebook account. Photos of a plaintiff sitting next to a pool, for instance, are irrelevant because they don’t prove anything one way or another. On the other hand, photos of an accident victim at the top of Mount Everest or finishing a marathon would certainly be relevant.
What does all this mean to accident victims and what lessons are there to be learned?
First and foremost, if you are the type of person who keeps a public profile, posts updates for the world to see and tends to live tweet every moment of your life, there is very little to learn; the insurance companies will have access to your public profiles and will search for anything useful to reduce the damages on your case. So, the first lesson is, if you are going to use social media, to keep all of your social network profiles private and viewable only to your “friends” – and not “friends of friends”, which is what caused Fotini all that trouble.
People involved in personal injury lawsuits should certainly be aware that what they post online may end up as evidence in court and, therefore, should be careful not to make statements that are inconsistent with the photos they post online; don’t say you can’t walk for long periods of time and then post pictures of yourself finishing the most recent Tough Mudder or Iron Man competition.
The easiest way to make sure social media doesn’t complicate your case is to unplug from Facebook and other social media sites until your case is over.
Ultimately, the best way to protect your interests as a plaintiff in a personal injury lawsuit is to be truthful about your limitations and consistent in your actions.
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