In the digital age, platforms have become easy ways for people to connect, share experiences, and document their lives. However, would this be appropriate for a personal injury claim?
Over 60% of cases have been negatively impacted by posts, with evidence from these platforms used to undermine claims under the personal injury law. This trend is concerning, as a personal injury lawyer reports increasing instances where content has played a game-changing role in determining outcomes.
The Canadian Legal Information Institute (CanLII) cites cases where activity precedes a verdict. As legal precedent continues to evolve, checking that your online activity aligns with your complaint is imperative to protect your interests.
The Risks of Oversharing
Courts, like the Ontario Superior Court of Justice, have ruled that information disclosed on platforms like Facebook, Twitter, and Instagram can be disclosed and admitted as evidence under the “e-discovery” principle.
Personal Information on Financial and Employment Status
If a plaintiff posts about securing a new job, an increase in salary, or any material change, this may contradict claims related to loss of earnings. Posting about financial gains, such as starting a new business venture or receiving financial support, can undermine cases of economic hardship.
Conversations and Comments
People often communicate with friends and family in hidden settings via virtual platforms. Note that “direct messages” or “private posts” are not protected from disclosure in courts. Precedents, such as McIntyre v. Grigg (2010), have demonstrated that even confidential conversations can be admissible in court if they relate to the case’s issues.
Posting Photos or Videos of Your Injury
In R v. Morelli (2010), the Ontario Court of Appeal ruled that photographs and videos online were admissible when they could provide evidence that undermined a defendant’s claim.
Contradiction of Healthcare Evidence
Plaintiffs rely on evidence, including doctors’ notes, diagnostic reports, and expert testimony. Posting a video or photo of oneself engaging in physical activities—such as walking unaided, lifting objects, or participating in sports—can undermine one’s testimony and create doubt in the eyes of the court.
Case Example
Young v. Toronto Dominion Bank (2020)
The court found that the plaintiff’s posts showing activities that contradicted her testimony were decisive in diminishing her credibility. She had claimed physical limitations due to a slip-and-fall injury. She had posted images of herself hiking and gardening, which were inconsistent with her records.
Ethical and Privacy Considerations
Plaintiffs may unintentionally expose sensitive health information by showcasing images of medical devices, injuries, or treatment plans. In some instances, disclosing such content may even conflict with Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA), which sets out how personal data must be handled.
Discussion of Your Lawsuit
Discussions about progress, upcoming court dates, or potential settlement offers should be kept private. Disclosing any part of the litigation could be seen as violating the principle of “privilege,” which protects confidential communications.
Waiver of Attorney-Client Privilege
This allows clients to freely discuss the details of their litigation with their Calgary personal injury lawyer without fear of disclosure to opposing parties.
- For example, a defendant’s use of private messaging to discuss related strategies with friends was found to be damaging to his defence. The court ruled that even communications intended to be private could be disclosed if they were relevant.
- In the 2014 Ontario proceeding of Edwards v. Bell Canada, the court ruled that Facebook posts could be compelled during discovery, even if they were set to “private.” This established that online content, even when not publicly accessible, may still be discoverable if deemed relevant.
Opposing counsel can request virtual discussions (in public forums or private messages) as part of the discovery process. If a plaintiff discusses developments online, they may use those to discredit or weaken their position.
Tagged Posts by Friends and Family
If a friend or family member’s content tags the plaintiff engaging in activities inconsistent with their claims—such as attending a social gathering, engaging in physical activities, or even travelling—this can directly undermine their position.
Best Practices to Minimize Risks
| Requesting to Be Untagged | Ask friends and family to refrain from tagging you, especially those that depict physical activities or social events that could contradict your motor vehicle accident or car accident issue, for instance. |
| Consulting Legal Counsel | Clients should consult their lawyer before engaging in online activity. Experienced personal injury lawyers can advise on suspending online use or taking steps to ensure that tagged material does not harm the action. |
Liking or Commenting
If a plaintiff likes or comments about sporting events or physical activities, the opposing team may argue that this behaviour contradicts the claims that they cannot perform basic physical tasks. Even if it is not directly related, such interactions can be misinterpreted as evidence of the recovery.
State of Mind
Content related to the defendant, the incident, or comments on content related to the impact may suggest an emotional or psychological state.
If one actively likes or comments in discussions about the emotional distress caused by motor vehicle accidents, for example, this could undermine the argument that they are suffering from an inability to communicate their feelings.
Showing Activities That Contradict Your Injuries
Posting pictures from a vacation, engaging in sports, or even attending events that require physical exertion can be seen as evidence that the plaintiff is not suffering from the condition they claim to be.
Some activities may be used by opposing counsel to argue that the person is exaggerating or falsifying their serious personal injury. This includes posting:
- Lifting heavy objects
- Performing yoga
- Engaging in recreational activities such as hiking
Failing to Set Privacy Settings
Review and update your settings regularly to restrict access to social media profiles, particularly for those who may post tagged content.
Public vs. Private Content
| Public | Accessible to anyone, including defence attorneys, insurance adjusters, and private investigators. This includes photos, comments, or interactions that are visible without restrictions. |
| Private | Restricted to a select group of individuals, such as friends, family, or approved followers. Properly managing privacy settings allows you to control who has access to personal information, reducing the risk of inadvertent exposure to content that could harm their position. |
However, as seen in Sparks v. Dubé (2013), even private social media content can be subject to disclosure if the court deems it relevant. In this event, the New Brunswick Court of Appeal ruled that the plaintiff’s private Facebook messages were relevant because they contradicted the claim that their injuries limited their activities.
Privacy Settings and Best Practices
- Set Accounts to Private
- Disable Third-Party Tagging
- Disable Location Services
- Review and Limit Friends and Followers
- Regularly Review Privacy Settings
- Consult Legal Counsel
Using Virtual Networks to Communicate with Insurance Adjusters
Platforms like Facebook, LinkedIn, and Twitter are inherently public or semi-public spaces, even when privacy settings exist. These platforms are not designed for confidential or secure communication.
- Despite efforts to limit the visibility, interactions are not guaranteed to remain private.
- Insurance adjusters are trained to collect and analyze information from all available sources. Even casual exchanges can be retrieved and misinterpreted.
- Many platforms store and record metadata, including timestamps, locations, and the identities of all parties involved in the communication.
- This can be accessed during the discovery phase of a lawsuit, where an insurance company is granted the right to review any relevant communication.
- Courts have routinely admitted online communications as evidence. This makes it a risky medium for discussing sensitive details.
Protect Your Case – Be Cautious Online
Digital media can present risks to the integrity of your dispute. Sharing too much personal information, posting photos or videos of your injuries, and engaging in discussions about your matter online can all serve as evidence for insurance companies and defence attorneys to dispute the severity of your claim.
Even activities like liking or commenting, being tagged by friends and family, or communicating with insurance adjusters through platforms can be used to undermine your credibility and reduce your compensation.
To protect your position, seeking guidance from a legal team at Sidhu Personal Injury Lawyers is a proactive move from these risks. Our Calgary personal injury lawyers can advise you on avoiding common pitfalls and ensuring your action remains as strong as possible.
With our personal injury law firm, you can focus on your recovery while we handle justice and fair compensation for your dispute. Call us for a free consultation.
Frequently Asked Questions
How many cases are affected by digital posts?
According to a Pew Research Center report, 69% of Canadian adults use them regularly. Insurance companies and defence attorneys often monitor claimants’ accounts. Estimates suggest that as many as 80% are now influenced by online activity.
How can “liking” or commenting on posts impact the outcome of my proceeding?
Liking or commenting on a post can negatively impact your case. In cases where media was used as evidence, interactions often involved likes, comments, or shares by the claimant, not direct posts.
How many claims have been denied due to media evidence?
It is estimated that about 15-20% of claims are outright denied due to online evidence that contradicts the claimant’s version of events. This includes posts showing physical activities that challenge the severity of injuries or online statements that conflict with claims.
