Though the majority of US adults use social media, few are aware of how their posts, videos, and photos may be used against them in a personal injury case.
Research suggests that digital evidence is a growing trend in personal injury litigation, highlighting the importance of claimants’ awareness of their digital footprint.
When researching social media’s role as evidence in personal injury litigation, Pagefreezer reviewed data from online legal databases between Fall 2022 and Fall 2023. It found that digital evidence from Facebook, LinkedIn, X/Twitter, Instagram, YouTube, and TikTok factored heavily into outcomes in approximately 500,000 cases.
The following report analyzes the growing impact of social media posts as evidence in personal injury lawsuits and the implications for claimants.
Role of Social Media Evidence in Personal Injury Cases
According to the Pew Research Center, over 70% of adults in the country are active on social media platforms, with YouTube, Facebook, and Instagram being the most popular across age groups:
Ages 18–29:
- Facebook: 68%
- Instagram: 76%
- YouTube: 93%
Ages 30–49:
- Facebook: 78%
- Instagram: 66%
- YouTube: 94%
Ages 50–64:
- Facebook: 70%
- Instagram: 36%
- YouTube: 86%
Ages 65 and older:
- Facebook: 59%
- Instagram: 19%
- YouTube: 65%
As social media usage proliferates, its use in legal proceedings becomes more common. According to legal experts at the University of Connecticut School of Law, attorneys report an increase in cases using social media evidence over the past five years, particularly by the defense.
Insurance adjusters, for example, may use social media posts, images, and videos as evidence to contradict a claimant’s testimony or alleged injuries.
Social Media as Digital Evidence Case Studies
Social media posts, images, and videos are increasingly being subpoenaed, and courts have consistently ruled that social media content, even private posts, is admissible if it is relevant to the case.
This evidence often serves to contradict claims of physical injury, emotional distress, or other damages, directly impacting the credibility of the claimant. Below are case studies highlighting how social media evidence has been used in litigation:
Case: Romano v. Steelcase Inc.:
- The plaintiff claimed permanent injuries that confined her to her home.
- The defense requested access to her private Facebook and MySpace accounts, asserting that her social media posts showed a lifestyle inconsistent with her claims.
- The court ruled that the content was discoverable, as it could contradict the plaintiff’s allegations.
Case: Nucci v. Target Corp:
- The plaintiff filed a lawsuit after a slip-and-fall incident, alleging physical injuries and emotional distress.
- The defense sought recent Facebook photographs to challenge the extent of her injuries.
- The court ruled that social media photos are not protected by privacy rights when relevant to the case.
Implications for Personal Injury Claimants Who Use Social Media
These case studies demonstrate how social media evidence can undermine a claimant’s testimony and ultimately influence court decisions. Many social media users believe their privacy settings protect their content from legal scrutiny, but this is often not the case.
Federal Rule of Evidence 402 states that social media content is admissible evidence if it is relevant to the case, even if privacy settings are applied. The American Bar Association notes that for digital content to be admissible, it must be proven relevant according to the following factors:
- Authentication: A post appearing on a person’s social media page is insufficient proof of authorship. Social media accounts can be created under false names or accessed by others.
- Proper documentation: A printout (or download for videos) of the social media post must be presented as evidence. The person who printed or downloaded the post must also testify that it accurately reflects what was on their screen.
- Methods of authentication: Testimony or subscriber reports from the social media network are needed to prove exclusive access to the account or originating device. For example, direct witness testimony can come from the post’s creator, someone who witnessed the post being created, or someone who communicated with the creator through that social media network.
Defense Strategies Involving Social Media Evidence
Defense teams increasingly leverage social media to uncover evidence that may challenge a claimant’s case in the following ways:
- They actively monitor claimants’ online activity, looking for posts, photos, or videos that contradict alleged injuries or emotional distress.
- Defense attorneys can issue subpoenas to social media companies to access private or even deleted content.
Advice for Personal Injury Claimants
Approach social media activity with caution during legal proceedings. Opposing counsel may attempt to use your online posts, images, or videos to challenge your claims. These steps can help:
- Limit social media activity: Avoid posting about your accident, injuries, or any activities that could be misinterpreted or taken out of context. Refrain from discussing the details of your case or legal proceedings on any platform. Even indirect references can be misconstrued.
- Adjust privacy settings: While privacy settings are not a guaranteed safeguard against subpoenas, they can provide an additional layer of protection by limiting public access to your posts. Regularly review and adjust your privacy settings to restrict who can view your content, tag you in posts, or search for your profile.
- Consult a lawyer: Speak with your attorney about appropriate online behavior during the legal process. They can provide specific guidance tailored to your case and help you understand how social media activity could affect your claim. If you are unsure about whether a post or photo could harm your case, consult your attorney before sharing it online.
If you suffered an injury due to negligence, a Fort Worth personal injury lawyer with The Texas Law Dog can explain what steps you can take to protect your claim and seek the compensation you deserve.