We are now seeing the insurance companies hunting social media sites such as Facebook and mining those sites for photos/blogs about what the clients are doing while they are claiming to be injured. Courts have ordered clients to produce their sites to the other side.
Consider a recent Newfoundland and Labrador case. The insurance company used publicly accessible parts of a Facebook site to destroy a personal injury plaintiff’s case in Terry v. Mullowney, 2009 NLTD 56 (CanLII). The judge stated that “without this evidence, I would have been left with a very different impression of Mr. Terry’s social life,” and “I draw an adverse inference against Mr. Terry based on the inconsistencies between his social life as depicted on this Facebook site and his claims about his limitations.” You can read more of what the judge said at the end of this warning.
Here is what a friend, personal injury lawyer Brenda Hollingsworth, is telling her clients at her website:
FACT-> While initially people were quite guarded about what photos they posted online and who has access to them, people are gradually becoming more exhibitionist. Your friends may have photos of you, that can be searched by your name, on their pages. In other words, your own privacy settings cannot protect you entirely.
FACT-> The courts have ordered injured plaintiffs to produce their Facebook pages to the insurance company lawyers.
FACT-> Evidence from Facebook has been admitted in court and is used by the police and the traditional media.
FACT-> Every insurance defence lawyer who is looking for injured plaintiffs’ pages, profiles and pictures on Facebook.
So, does this mean you have to withdraw from the 21st century and avoid social media? As your lawyers, we would like to say, well, yes, avoid it like the plague. However, as human beings, we recognize that may not be possible. So, what steps can you take to protect yourself?
Step One: Take a critical eye to your social media sites to see if there is anything you would not want the insurance company lawyer to see. Remember that the insurance company will not know the context of your photos or comments. They won’t know if you swallowed a bottle of pain killers to get through that party.
Step Two: Check your privacy settings. Most sites allow you to block certain people altogether from seeing that you even are on the site. Block the opposing lawyer and his/her clerk. Keep in mind, however, that there will be law students and others whose names you won’t know, so this is not foolproof.
Step Three: Search your name in the search field to see what comes up and make sure it is acceptable.
Step Four: While you are at it, do the same thing on Google and YouTube. Make whatever adjustments are necessary.
Step Five: Don’t accept friend requests or answer emails through social media from people you do not know. On Facebook, if you send a message, you grant the receiver access to your profile for a certain number of days. That is a common device to get access to your profile. Keep in mind that because of the lawsuit process, the opposing legal team knows a lot about you and could send you an email that might make you think you know each other.
If you are in doubt about whether or not your pages are acceptable, speak to your personal injury lawyer about it.
Here’s exactly what the judge said in the Newfoundland and Labrador case of Terry v. Mullowney:
 Mr. Terry claimed that his social life had been severely curtailed by the effects of the motor vehicle accidents. He said he was no longer able to play pool with his friends and he essentially had little or no social life, except the occasional weekend outing.
 Counsel for the defendants confronted Mr. Terry on cross-examination with printout excerpts from the internet social interaction website known as Facebook on which Mr. Terry had an account. This website allows people to exchange personal information about their activities, lifestyle and interests, including photographs and contact information. Mr. Terry’s account was accessible by any member of the public.
 While not getting into the details of these excerpts, they convince me that Mr. Terry (at least in the few months just prior to his testimony in Court recorded on Facebook) had a rather full and active social life. He went to and hosted parties, attended weekend outings at summer cabins, drank alcohol frequently, smoked marijuana daily and appeared to have a number of friends with whom he communicated and socialized on a regular basis. I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on Facebook and that for the remainder of the time from 2001 to 2007 he essentially had no or little social life.
 Without this evidence, I would have been left with a very different impression of Mr. Terry’s social life. He admitted as much in cross-examination. After he was confronted with this information which is publicly accessible, he shut down his Facebook account saying he did it because he didn’t want “any incriminating information” in Court. I draw an adverse inference against Mr. Terry on account of this statement and conclude that the Facebook account which he shut down and some particular messages which he deleted prior to shutting down the account entirely contained information which would have damaged his claim.