Following a personal injury, your to-do list likely consists of visiting your doctor, consulting with an accident attorney, and taking the time you need to recover from your injuries. Something that shouldn't be a priority? Social media - specifically, posting images or videos that could be used against you.
If you thought your social media accounts were safe from the wrath of insurance companies, you're sadly mistaken. Keep reading to discover how social media can actually sabotage your accident claim.
Incriminating Evidence on... Instagram?
There are currently over 1 billion users on the photo and videosharing app Instagram, with over 800 million users actively posting, liking, or commenting each month. In total, 71 percent of Americans now use the platform, and 60 percent are logging in daily. In fact, users are uploading over 95 million photos each day.
But, are some of these photos actually make or breaking personal injury cases? According to a recent New York personal injury case, they can and they will.
An Accident Attorney's Review: Smith v. Pasquale
After suffering injuries in an auto accident which caused an alleged loss of enjoyment of life, plaintiff Christina Smith proceeded to post photos and a video to her then-public Instagram account. The posts depicted the young woman engaging in various activities, including rock climbing and walking along a boardwalk. In her lawsuit, Smith claimed that the injuries she sustained to her spine and her knee caused pain and suffering as well as loss of enjoyment of life.
Frank Pasquale, one of two defendants in the case, moved to admit on the basis that if the Instagram posts do depict Smith, that her injuries are not as severe as she claims. Pasquale also sought the admission that Smith changed her account from public to private at some point after the accident. Smith's legal representation did not answer Pasquale's motion to admit, and instead responded with a motion for a protective order.
Bronx Supreme Court Justice John Higgitt denied the motion, finding that the motion to admit concerns "clear-cut matters of fact" - either Smith has an Instagram account she's posted to, or she doesn't. If admitted as evidence, these incriminating posts can serve a detrimental blow to Smith's case.
So, what do we think of social media being used as evidence against a claimant in a case? Is it fair? Let's take a look.
A Decades-Old Tactic Reaches the Modern Age
The bottom line is, insurance companies and the defense for the defendant have been attempting to dig up dirt on plaintiffs for years. This tactic is nothing new. The last few years have seen an increase in the aggressiveness of insurance companies when it comes to defeating personal injury claims.
While we often picture surveillance as a shady effort as part of some organized crime prosecution, insurance companies have begun to rely more frequently on surveillance to help them dismiss claims.It might not seem right that insurance companies can essentially spy on someone who was injured by an accident that their insured caused. However, as unfair as it may sound, the law actually does allow insurance companies to engage in limited surveillance.
Insurance companies are legally able to:
- Take audio
- Shoot video
- Take still photography
So long as an injured person is in a public setting, as in going out to eat, walking down their block, or even at work, if it is a job that caters to the public, they can be taped. However, basic privacy rights are retained, and a plaintiff is safe from surveillance within their own home.
What Does This Have to Do with Social Media?
You might be scratching your head and wondering what any of this has to do with the aforementioned case. Well, insurance companies have access to the plaintiff so long as they are in a public setting. When an individual posts something to the Internet or to social media, and that platform is public, they are allowing anyone to see it.
Think of a public social media account as a public setting out in the physical world - if the defense has public access to it, it can be used against you. So, when Ms. Smith posted photos and video of herself engaging in activities that disputed her claims of pain and suffering onto a public profile, she did so in the eyes of the defense.
While she did attempt to make her profile private following her accident, the defendant had already seen and acknowledged the images. By incriminating herself on her Instagram account, Ms. Smith provided the defense with the evidence they needed to dispute her claim.
Lessons to Learn from an Accident Attorney
If you have social media profiles, it is perfectly understandable that you want to continue posting to them following an accident. However, just as what you say or do in front of the defense can be used against you, so can what you post online publicly.
As trusted accident attorneys, the team at Weinstein Legal fights hard to protect our clients rights. You have a right to post on social media. But when you are suffering legitimate injuries which have drastically impacted your life, the last thing you want to do is possibly compromise your own case. Take this note from an accident attorney: If you wouldn't do it publicly for an insurance company to see, don't post it on social media.
Instead, use that time to relax and recover. If you've suffered injuries during an accident that was of no- or limited-fault of your own, you deserve compensation. Contact Weinstein Legal today to get started protecting your legal rights