According to a cursory Google search, well over a billion people worldwide are active on Facebook. It is important to realize that Facebook and other forms of social media often intersect with workers’ compensation claims and other types of litigation. Facebook and social media can have a direct and often negative impact on the outcome of workers’ compensation claims and other types of litigation, including family law and civil lawsuits. Defense attorneys, insurance companies and private investigators are regularly and consistently checking social media to “dig up dirt” on workers’ compensation claimants and other types of litigants.
In cases where information is accessed in a permissible manner, the courts will typically allow admission of social media evidence if it is relevant. In many instances, even privacy settings can be meaningless if a court believes that information found in the public settings could lead to relevant information in the privacy settings. A subpoena can be and is often issued to get additional evidence from private posts.
Because of this, those in the middle of litigation should refrain completely from using social media during the pendency of the claim/lawsuit. Even the most innocent of posts/pictures can be taken out of context and used against the litigant.
Take for example a young woman who sustained a career ending back injury at work. Despite her injuries, she managed to meet with friends and often posted pictures on Facebook of their outings. Keeping in mind that the law does not prohibit an injured worker from spending time with friends or participating in day to day life activities, these photos were brought up to the judge at a mediation as evidence that her injuries were not as bad as she claimed. Clearly the young woman could explain/testify that after such an outing, she would be in bed all day the next day. But, the photos were still there for the judge to consider. The young woman’s credibility was called into question unnecessarily.
To be safe, litigants should change their security settings to the highest level of restricted access, as long as it is not done in violation of a court order. It is never a good idea to delete or destroy social media postings that are already in existence at the time the claim/lawsuit is filed. That could lead to bigger problems than the posts themselves.
According to the Facebook Help Center, anyone can see public information which includes name, profile picture, cover photo, gender, username, user ID and networks. But, only the user and her friends can post to the timeline. The user can limit who sees the post by using “audience selector” and the user can control who sees when others post to her timeline by choosing “Who can see what others post to your timeline” setting. There is also a setting to control who sees the post that the user is tagged in under Settings, then Timeline and Tagging.
The key is precaution. The message is to not to allow something that is innocent cause a problem for your claim/case. By taking simple steps, this can be avoided.
* Ann Dalton is a partner at Hammond & Shinners, P.C. where she practices exclusively in the areas of Workers’ Compensation representing claimants in Missouri and Illinois. For questions, Ann can be reached at 314-727-1015 or by email at firstname.lastname@example.org. The firm’s website can be viewed at www.hammondshinners.com