Nearly everyone is active on social media nowadays. Although social media offers a fun and effective means of communication, it can have negative consequences for your personal injury case. The most common questions I hear from my clients regarding social media revolve around two questions: (1) Are my posts private? and (2) Can I continue posting about unrelated matters not pertaining to my case or injuries? The answer to both is a resounding “No.”
How Your Posts Can Harm You
Even if your social media accounts are set to private, the opposing party’s attorney can request and use your social media posts, photos, and videos in a personal injury claim or lawsuit. Even seemingly irrelevant posts can be used against you. For instance, if you share pictures of yourself enjoying a vacation or happily spending time with family, it can contradict your claims of “pain and suffering” caused by your injuries.
The relevance of your posts to the claim is a factual question that depends on the specific circumstances of each case. Claimants should understand that posts not directly related to their accident may still be considered relevant. It’s crucial to consider how your posts may appear to a jury in the future. Do you want the jury to see videos of you having a good time out of context while a defense attorney reads your posts aloud? Probably not. Remember what you post on the internet is public. Even if your privacy settings are set to the highest level, your posts are still discoverable by the other party if your case is litigated.
The Ethics of Social Media Posts
The Professional Ethics Committee of The Florida Bar issued Proposed Advisory Opinion 14-1, addressing the ethical obligations of attorneys when advising clients to “clean up” their social media accounts to remove embarrassing content before litigation. The opinion refers to Rule 4-3.4(a) of The Florida Bar, which prohibits lawyers from unlawfully obstructing another party’s access to evidence or altering, destroying, or concealing relevant documents or materials. The committee concluded that a pending claim could involve a “reasonably foreseeable proceeding” since the client has hired the lawyer to determine the viability of a claim and pursue it if viable.
The Florida Bar Committee agreed with the New York County Lawyers Association that allowed lawyers to advise clients to use strict privacy settings and remove information from social media pages, as long as no violation of preservation and spoliation laws occurs. In Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013), sanctions of $542,000 were imposed against the lawyer and $180,000 against the client for the destruction of evidence when the client deleted photographs from their social media page, deleted the accounts, and the lawyer signed discovery requests that the client did not have any accounts. If advised to do so by their lawyer, a client could remove social media content, as long as they did not permanently delete or destroy the content which could be considered evidence. The Florida Bar opinion concludes that lawyers may advise clients to change privacy settings and remove (but not delete) relevant information but stresses the need for a case-specific determination of the relevance of the social media posts to the pending claim and highlights the importance of preserving the content.
Top Five Social Medial Suggestions
Our general recommendations about social media posts are based on the Florida Bar’s opinion. Please note that the information in this article is of a general nature and should not be construed as legal advice. Laws and rules vary from one state or jurisdiction to another, and legal guidance from an attorney licensed in your area is essential for addressing your legal issue.
- Don’t post on social media at all. If you intend to pursue a claim for damages after an accident or injury, posting to social media is not worth the risk of harming your case. If you must, you can still “like” and comment on other people’s posts. Just don’t talk about your accident or injuries if you do.
- Change your privacy settings. If you’re going to use social media, change your privacy settings to the highest level possible, and don’t accept friend requests or follows from strangers. This step can help limit public access to your posts and information.
- Don’t permanently delete Only remove posts if advised to do so by your attorney and do not delete or permanently destroy social media posts, photos, videos, or other information. The deletion could be seen as violating the preservation of evidence laws, which may have legal consequences. If you remove content from your social media accounts, whether it’s relevant to your case or not, you must keep a record of what was removed. Save a copy of all the data, including the text or caption you posted with the photo or video.
- Don’t try to conceal your social media accounts. Do not create secret accounts or try to hide your social media accounts. You will likely be asked about all your accounts under oath at a deposition. Failure to disclose them could be perjury and destroy your case.
- Consult with your attorney. Before making any decisions regarding your social media presence, seek guidance on what content should be retained, what can be removed, and the potential implications of your social media activities on your
Your best option is still number one – don’t post at all. Remember, your social media accounts will be there to use when your case is over. Here’s a chance to connect with friends in real life, the way we used to – in person.
Disclaimer: The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content may not be accurate or applicable to your specific case in your state or jurisdiction. Laws and regulations vary from one jurisdiction to another, and legal guidance from an attorney licensed in your area is essential for addressing your legal issue. This article was written with the assistance of AI language model technology to brainstorm ideas and generate content. The author has edited the content and verified the accuracy of the information provided.