Is My Instagram or TikTok Evidence in My Case?
Some of the first advice I give to new clients is to be very cognizant of their social media presence while involved in litigation.
We live in a world in which most people have waived significant amounts of their privacy by posting about their lives online. In litigation, these social media profiles are considered “documents” and therefore can be requested and potentially used as evidence by the parties in a lawsuit. While privacy is a consideration in litigation, it is hard to argue something is private if it is being shared with hundreds of “friends” or “followers” online. While these websites and applications have privacy settings, I advise clients to assume that what they post is not private at all and will be available to the other side in their lawsuit.
People, naturally, tend to curate their social media profile to show themselves in the best light. Seldom do people post photos of themselves wincing in pain, taking medication or attending counselling appointments. That means that most people’s social media presence is a misrepresentation of their day to day lives. People smile when they take photos, even when they are depressed, even when they are in pain. Lawyers who represent injured people often argue that a social media profile has little to no “probative value” but can be very “prejudicial” to a Jury, who will see what appear to be happy photos. Courts have often accepted that argument, and if they do, those photos are not admissible as evidence.
However, this argument is difficult to make when social media profiles contain photos of activities. Most personal injury lawsuits include damages for a person’s inability to enjoy their full pre-injury life, and therefore photos of them doing activities are potentially relevant. They are particularly problematic if they show a person engaging in things which they claim they cannot do, even if it was just a single failed attempt.
While best practice is for clients to go “social media dark” during litigation, that is not possible for all people. As always, be cognizant and vigilant about what you’re posting about yourself online.
This article was originally published by The Hamilton Spectator.
