For years, insurance companies and defendants in personal injury lawsuits have used private investigators, surveillance, and other investigatory techniques to gather evidence to discredit a plaintiff’s claims of serious injury. If a picture is taken of plaintiff dancing the night away or mountain biking while all the while claiming that the defendant’s negligence has rendered him virtually immobile, that can be evidence more powerful than all the medical records and expert testimony which the plaintiff may have in his corner.
Similarly, if you’ve been charged with DUI, and a tavern’s security camera shows you drinking shots and beers in the hours before your arrest, mounting a vigorous and successful defense becomes infinitely more difficult to say the least.
With the rise of social media, work formerly done by gumshoes and other investigators can often now be done by a click of the mouse. Ill-advised posts and pictures uploaded to Facebook, Twitter, Instagram, and other social media sites by injury victims, criminal defendants, friends, and total strangers may be all the evidence needed to ruin a personal injury claim or criminal defense.
If you’ve been injured, you should absolutely refrain from posting anything regarding the accident, your injuries, your claim, or any pending lawsuit. Even seemingly innocuous pictures or posts, or posts that appear to be wholly unrelated to the facts and circumstance of your case could be used in unforeseen ways against you.
If you’ve been charged with a crime, consider this: a July 2012 survey of more than 1,000 federal, state and local law enforcement agencies by LexisNexis Risk Solutions revealed that 83% of the respondents are using social media, particularly Facebook and YouTube, to further their investigations. In addition to using social media to identify pieces of evidence that will help prove their case, law enforcement agencies use the tool to organize public outreach efforts and solicit tips on unsolved crimes. Many police departments have their own Facebook pages and Twitter accounts and use these avenues to relay important public safety information to the public.
If you think your privacy settings will save you, think again. It is not unheard of (though it is of dubious ethics) for defendants or insurance companies to attempt to surreptitiously attempt to “friend” or otherwise gain access to a victim’s post through third-parties or false profiles. In criminal cases, a number of courts have ruled that social media postings are not private, even when users adjust their privacy settings to shield their page from public view. In one New York case, prosecutors obtained incriminating evidence against the defendant through a cooperating witness who happened to be Facebook “friends” with the defendant. When the defendant asserted that his 4th Amendment rights were violated, the court said that “[The Defendant’s] legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government.”
Facebook and Twitter’s privacy policies warn users that the purpose of the sites is to share information, and that the public can view the posts on the sites. Prosecutors and police can and do obtain the court orders, subpoenas, or search warrants necessary to obtain subscriber information, history, and content from social media networks.
In a perfect world, personal injury plaintiffs and criminal defendants would cut the cord and stop engaging in their regular social media activities while their case is pending. But if the prospect of refraining from posting is too much to bear, at least try to heed this practical advice:
- Do not accept friend requests from people you don’t know.
- Presume that anything you post can and will be seen by the defense or the prosecutor.
- Tell your friends to refrain from posting any comments or pictures about the incident in question, your injuries, your conduct, or anything about you at all if possible.
- Google yourself every once and a while to see if any damaging information has been posted by others without your knowledge.
You wouldn’t do cartwheels in front of a defense lawyer’s office while claiming traumatic and ongoing injuries, and you wouldn’t grab a bullhorn and stand outside a police station holding a bag of cash and yelling “I’m rich!!” the day after robbing a bank (unless you were these people). Don’t do the online equivalent with your social media posts.