It’s fair to say that the majority of Nova Scotians have some kind of involvement with social media – Facebook, Twitter, Instagram, etc. Insurance companies know this and are increasingly using it as a means of denying legitimate injury claims. If you are injured and are involved in the injury claim process for something like a car accident, it is important to bear this in mind. As experienced injury lawyers, we've seen an increased trend of insurance companies trying to use social media against injured people.
Consider the following example: a person is in a car accident and suffers an injury through the negligence of another driver. The injured person makes an injury claim and is dealing with pain and limitations. They are seeking compensation for those injuries. A year from the accident, the injured person goes on vacation with their family and posts a photo to social medial of them smiling on the beach. The insurance company sees the photo, captures it, and makes the argument that the person can’t really be all that injured if they’re smiling on vacation (as if injured people are never allowed to smile).
You might be thinking this is far fetched and unlikely. Unfortunately, it’s not. Insurance companies can manipulate that “snap shot” to make the argument that an injured person is doing just fine. People tend to post noteworthy, happy photographs on their social media and generally don’t post photos of trips to the doctor, the physiotherapist, and so on.
It’s important for accident victims to not let an injury claim dictate how they live their lives, but to protect from the possibility of an insurance company raising this sort of defence, we recommend that people involved in injury claims increase their privacy settings on their social media accounts, and if the injured person would prefer to have a more public privacy setting, to be mindful that it’s possible an interested party to the claim is always able to monitor their accounts and manipulate photos and other posts to suit their own purposes.
When our clients face this issue with insurance companies, we are always quick to quote from a recent case out of the Ontario Superior Court of Justice, Stewart v Kempster, 2012 ONSC 7236, where the judge rejected the insurance company’s “social media post defence” and stated the following: “An injured person and a perfectly healthy person are equally capable of sitting by a pool in Mexico with a pina colada in hand. A photograph of such an activity has no probative value.”
While this logic seems obvious, until it’s adopted in more Nova Scotia court cases, insurance companies will continue to try to use social media against injured people. If you’re involved in a personal injury claim, be aware that your posts can be used against you and follow our tips above.