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Beware of Facebook If Suing For Injuries

What you post on Facebook, Twitter, MySpace, YouTube or other social media can come back to haunt you.

This is especially true if you say the back injury you suffered in a car accident severely restricted your activities, but Facebook photos show you skiing down black diamond runs.

Of course this is only a problem if what you say at pre-trial questioning or trial can be contradicted by such postings, allowing the other side to show that your claimed injuries and limitations are exaggerated or don’t exist.

Take the 2010 case of Mr. M, 22, injured in three separate accidents over five years. He first hurt his right wrist, then (second accident) his right knee and finally (third accident) his back. He claimed this affected his ability to work and enjoy recreational activities. But photos posted on Facebook showed him playing football, kneeling on a tube while being towed behind a boat, kneeling while posing with friends and sitting curled up in a clothes dryer. This and other evidence proved that some of Mr. M’s claims were exaggerated and inconsistent with his actual condition. The damages awarded to him for “pain and suffering” took this into account.

In another case, 22-year old Ms. S was injured in two car accidents, four years apart. She claimed the resulting ongoing headaches and neck, back and hip pain limited her ability to have fun and reduced her future earning capacity as a nurse. But her Facebook profile showed her rock climbing, white-water rafting, in a soccer uniform and at a golf driving range. This and other evidence of sports activity after the accidents didn’t match her description of her incapacities, which the court also factored in her compensation award.

The courts do try to balance your privacy rights in Facebook postings (and the rights of others) against the rights of the defence to get full disclosure of material relevant evidence. And, after looking at photos posted on Facebook, the court will sometimes comment they aren’t very helpful.

But in appropriate cases, the courts will even order you to disclose to the other side photos or videos not accessible to the public that you shared only with “friends” and family. So privacy settings on Facebook and general privacy rights may not protect you.

A recent ruling illustrates this. Ms F, a first-year law student at the University of Victoria, was rear-ended in a car accident. She claimed continuing neck and back pain and headaches, saying her injuries affected her recreational and social activities, employability and future prospects. But she travelled extensively after the accident and also went hiking, scuba-diving and wake-boarding (though with some restrictions and pain). Her private Facebook profile, which couldn’t be seen by the general public, could be viewed by 890 “friends” and stored 759 photos and one video. She also had some 12,000 other photos. In a pre-trial hearing, the court ordered her to disclose those that showed her participating in a certain “Law Games” social-and-sports tournament plus those taken on vacations since the accident. But she was allowed to edit the photos to protect the privacy of other people in them.

If hurt in an accident, consult your lawyer, be truthful about the nature and extent of your injuries, and consider limiting your Facebook activities.

Janice Mucalov, LL.B. forGertsoyg &Company. This column provides information only and must not be relied on for legal advice.

Please call Gertsoyg & Company.at(604) 602-3066 if you have any questions or for legal advice concerning your particular case.

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