Social Media and Discoverability in Car Accident or Personal Injury Cases
In an age of social media, are your posts, comments and photographs protected? Courts are moving to allow insurance companies access your public information and what you allow others to post about you. This article will give you some food for thought, and pointers to protect yourself.
If You Have Been Injured, Are Your Social Media Accounts Secure?Facebook has been in the news lately because a third party was able to access and record people*s information without Facebook, allegedly, taking proper precautions to guard against the copying of the information. A lot of people are upset by this and understandably so. When it comes to social media we post images, updates and comments on our page or to a group of our friends and believe there is some sense of privacy that comes with our account. When it was revealed that third parties were collecting data on Facebook users, it infuriated a lot of people and has even led to Congress calling Facebook*s Founder, Mark Zuckerberg, to testify before it.
The shock the general public may have after learning their information may have been collected by companies or people who did not have permission to view their page, comments or posts is nothing new to injury victims. Florida courts have, in recent years, moved toward requiring injury victims to disclose their posts, regardless of what their privacy settings are set to.
In Nucci v. Target Corp., 162 So.3d 146 (Fla. 4th DCA 2015), the court denied a slip and fall victim*s appeal of a trial court order requiring her to produce photographs posted on social media for a period of 2 years prior to her slip and fall. In upholding the trial court*s order requiring the production, the Fourth District found that the photographs were neither privileged nor protected under any right of privacy regardless of the user's privacy setting on their social media page. As the court noted, social media photographs "are unlike medical records or communications with one's attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy."
More recently the same court, in Wright v Morsaw, et. al., No 4D17-0589 (December 13, 2017), upheld another trial court*s order requiring the production of social media posts made following a crash in which Wright was accused of a hit-and-run which resulted with the death of a pedestrian. With both civil and criminal cases moving forward at the same time, Wright sought to quash an order requiring the production of these posts claiming a Fifth Amendment privilege against self-incrimination. In upholding the trial court*s order the Fourth District found that it had not been shown that Wright was being compelled to share anything that he had not already posted publicly.
Another problem facing victims of slip and falls, car accidents, motorcycle accidents, or any other injury, is that as courts begin allowing insurance companies to access injury victim's social media accounts, insurance companies have begun to learn how to weaponize this information. By looking through years of information, insurance companies can find a single post, or series of posts, to take out of context and argue that an injury victim is not as hurt as they claim. While this is almost never true, it is truly an effective tactic.
Can You Protect Yourself From Social Media Disclosure?First, it should be noted that until you file a lawsuit, the only information an insurance company can collect from your social media pages is the information you make available to the public. As such, an easy way to begin to protect yourself is by limiting who can view your social media pages and posts. You can do this by adjusting your privacy settings to private or otherwise limit their viewability.
Second, limit what information is posted of you by others. Some social media platforms allow the user to select an option which prohibits a tagged photograph, comment and/or post from appearing on the user*s page unless the user authorizes it. By selecting this option, you control what content ends up on your page.
Once you have filed a lawsuit, however, much of the content on your page will likely be considered discoverable as the courts and insurance companies continue to adjust to the era of social media. No one wakes up one morning and knows they are going to be injured in a car accident, slip and fall, trucking accident or otherwise. Just be aware that if you are injured, your social media pages and posts may become discoverable and taken out of context to be used against you.