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Facebook Versus Personal Injury Claims

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When you commence an injury claim it is likely that the Respondent to your claim will appoint investigators to investigate the factual basis of your claim, or perform those investigations themselves.

These investigations might range from simply taking statements from witnesses but can be as extensive as conducting video surveillance of you.

It has become all too common for Respondents to perform full reviews of a claimant’s social media profile, whether it be Facebook, Twitter, Instagram, Linkedin, Snapchat, YouTube or any other social media platforms.

We have increasingly seen the Courts make Orders for claimants to disclose not just the public aspects of their Facebook profiles, but also the private aspect that is only viewed by friends.

If you use any of these social media platforms you may be required to disclose the entire content as they may relate to the circumstances of your claim.

The types of information you may need to disclose may include things like instant messages, text messages, photographs, typed posts and/or videos and audio clips.  However, disclosure could also extend as far as computer system information and meta-data (data contained within an electronic file relating to the identification, origin or history of the file) – although we are yet to see a Court Order for disclosure to this extent.

The meta-data means that even if you deleted posts on social media they can be made available for the Courts viewing.

It is increasingly important that claimants remain mindful of any content that is posted on social media.

The scope of the disclosure that may be relevant is interpreted broadly by the courts.  For example, a document may be relevant precisely because it does not say something when it would be expected that it would. With the example of Facebook, it might be suspicious if you go from a post per hour type of person, to a post per month.

Examples of occasions where a claimant’s claim may be adversely affected by a Facebook or Instagram post are:-

  1. a post of you socialising with friends when you allege to be suffering from depression;
  2. a post of you skydiving when you allege to be suffering from a significant physical injury.

These types of posts may cause your credibility to be questioned.

Claimants have a duty to the court to ensure that they disclose all relevant documents in their possession as well as documents held by others. If you can exercise some control over those documents they are disclosable. This means that if a friend takes a photograph of you and posts that photograph on social media, that photograph may be disclosable.

WHAT IF THE DOCUMENT NO LONGER EXISTS?

You must tell your lawyer if you previously had any relevant documents that have since passed out of your control, been destroyed or have otherwise ceased to exist.  In those cases, the court may order you to file and serve an affidavit stating:-

(a)       that a document does not exist or has never existed; or

(b)       the circumstances in which a document ceased to exist or passed out of your possession or control.

It is a serious offence for a party to intentionally destroy, withhold, conceal, alter or falsify a document that is required to be disclosed.  An individual who commits such an offence risks criminal prosecution.

In consideration of the importance of social media if you have started an injury claim you should give access to your lawyer by adding them as a friend to fully investigate what documents may need to be disclosed in the injury claim.

As for the future, we strongly advise that you bear in mind that the Respondent to your claim may investigate your social media profiles before posting comments, pictures or videos. If your profile is closed to the public, the Respondent may obtain an Order from the Court for you to disclose the entire content of your social media profile.

For more information about personal injuries claims or the impact of social media contact one of our injury lawyers on 13 58 28.