The Pew Research Centre reports that nearly 70 per cent of Americans – and 86 per cent of 18- to 29-year-olds – use social media in some form, up from just 5 per cent in 2005 and 50 per cent in 2011. The numbers look similar in Canada, where personal injury lawyers are increasingly warning their clients to exercise caution on social media.
In a blog post from last year, we looked at Kourtesis v. Joris, a 2007 Superior Court of Ontario case where the plaintiff, Ms. Kourtesis, was injured in a serious car accident and sought compensation for pain and suffering and loss of enjoyment of life. She claimed to have suffered neck, back, and shoulder injuries in addition to memory and concentration issues. Her social life, she said, was ruined.
During the trial, defence lawyers discovered images on the plaintiff’s social media account that showed her celebrating St. Patrick’s Day with friends, contradicting her account of the injuries. Her claim was dismissed.
Ms. Kourtesis’s case is not unique. In 2015, the National Post wrote about British Columbia resident Sarah Tambosso, an injury victim who initiated a claim for hundreds of thousands of dollars in damages which was eventually dismissed after Facebook images materialized showing her river tubing and singing karaoke.
The National Post article raises an important question: do social media posts reliably represent a person’s life?
“Social media can be a difficult kind of evidence to use because it consists of small snapshots of what people want others to hear,” Rob Currie, director of the Law and Technology Institute at Dalhousie University, told the Post. “It’s different from behaviour you observe or statements you hear someone make; there is a wider variety of inferences the court can draw from it.”
For example, in a 2014 British Columbia personal injury case, defence lawyers claimed the plaintiff’s Facebook photos showed she had exaggerated her neck, back and shoulder injuries. The presiding judge was unconvinced by their arguments, writing: “A snapshot does not show anything but a moment in time, and does not disprove that the plaintiff also had many times … declined to participate in activities or felt in significant pain after trying to engage in activities.” The plaintiff was awarded $500,000.
Still, prudent personal injury lawyers generally warn their clients of the risks involved with social media activity during personal injury lawsuits. The tips included in last year’s blog post are as valid today as they were then:
– Never confirm friend requests from individuals you do not know
– Never post about your lawsuit or the discussion you’ve had with your personal injury lawyers
– Un-tag images of yourself taken following your injury, or ask whoever posted them to take them down.
– If possible, avoid posting images on Facebook, Instagram, Twitter, Snapchat, or any other social media platform. Instead, consider sending images via e-mail.
– The same goes for status updates, tweets, or comments on friends’ activity – don’t post anything you wouldn’t be comfortable sharing with defence lawyers.