As you may have seen, ICBC has a new ad campaign toting the considerable resources that they have devoted to catching fraudsters on social media. It works. For example, a Williams Lake man had rolled his truck after drinking on New Years Eve. In order to make a claim with ICBC, he convinced his sober passenger to tell them that she was driving. He was caught after he bragged on Facebook about his plan and ended up pleading guilty to fraud and obstruction of justice. Real fraud is a crime and affects all our premiums and social media is an invaluable tool for detecting it.
But social media posts often paint a rosier picture of someone’s life than what is really going on. If you are hurt you may continue to post pictures of your good days, such as on vacation or playing sports, but not posts pictures of the days you are couch bound and in pain. Your social media accounts can seriously affect your legitimate claim after you’ve been injured in an accident
Social media has become increasingly widespread in court and your photos, videos and other content can be used to test your credibility and the strength of your case. In a personal injury case, the information on your Facebook or other social media profiles may be relevant to your claim and their disclosure to the defense may be mandatory. The court will balance the possible relevance of the photos with your right to privacy. If you allege to be suffering from chronic headaches, back pain and neck pain that has caused you to lose out on sports and have a diminished social life, than photos of you playing sports with your friends on Facebook will more than likely be found relevant (see: Fric v. Gershman). Photos of you relaxing on vacation, however, might not be found relevant since “an injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand.” (see: Stewart v. Kempster). That being said, you should be very careful about what you put online if you have a claim pending.
If you have posted pictures online it isn’t the end of your case. Marc Bolda, an associate at DBM, faced a personal injury case where the defendant wanted to use an injured woman’s Facebook photos of a Vegas vacation. Marc successfully argued that the photos should not be given any weight as evidence. As the Supreme Court Justice stated in his reasons, the injured woman was “seeking compensation for what she has lost, not what she can still do” and that “the fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.”
Many judges realize that your photos on Facebook show you at your very best and don’t necessarily reflect how you have been affected by your injuries. We all know its just our best selves online. But your photos may still be taken out of context and cripple your case. If you have been injured, you must be careful about what you post online and should avoid it as much as possible. You do not want to be put into the position of having to explain away what was an innocent photograph.