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Personal Injury Litigation in the Age of Social Media: The Perils of Facebook

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Photosharing websites such as Facebook, Instagram and Flickr have become an integral part of social life amongst users of social media. Photos and thoughts that we once considered private are now accessible to complete strangers. We are more connected, but also more exposed.

If you've been involved in a motor vehicle accident or pedestrian accident, one of the "strangers" who will almost certainly be viewing your social media postings (and those of your friends and family) is ICBC. And where those postings appear to conflict with your reported injuries, you may have some difficult questions to answer.

In the recent decision of Tambosso v. Holmes, 2015 BCSC 359, the 34 year old plaintiff had been involved in two motor vehicle accidents. She claimed that as a result of the accidents she suffered from post-traumatic stress disorder, a traumatic brain injury and chronic pain stemming from soft tissue injuries. In order to assess the plaintiff's injuries, the Court was required to consider her credibility: was she telling the truth, or was she exaggerating and fabricating evidence?

The Court noted:

Throughout her evidence, the plaintiff testified that as a result of her PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose "life sucks".

Before the trial, ICBC had obtained a court order for production of the plaintiff's Facebook postings, all 194 pages' worth. Those postings told a different story. They included postings about how much the plaintiff loved her job and was working hard at it, photographs of her attending a stagette where she participated in drinking and river tubing, and photographs of her attending a Halloween party in costume. The Court noted that her postings continued with regularity after the 2008 accident which she claimed caused her PTSD, and only slowed during a period where she was having a difficult pregnancy and was in an abusive relationship.

The Court approached the Facebook evidence "with caution", cognizant of the tendency of Facebook users to post only positive events and activities, and those which portray themselves as "social". However, the Court found that, viewed as a whole, the plaintiff's Facebook postings were inconsistent with her own testimony.

The Court concluded:

I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a "homebody" whose "life sucked" and "only had friends on the internet".

There is a saying: "a picture is worth a thousand words" - and sometimes even a thousand words cannot undo the damage that a picture can cause. Photos can be taken out of context. If you are suffering from a back injury or neck injury, a photo snapped at a friend's party - one that you didn't want to attend because you had a sore neck but went along to please your spouse, smiling through the pain because you didn't want to spoil others' fun -- can be used to discredit you in your personal injury case. And it's not just what you post on "public" sites or pages that can be accessed by ICBC - as seen in the Tambosso case, the Court may order that private postings be turned over to ICBC as well.

If you've been involved in a motor vehicle accident, pedestrian accident or bicycle accident, take a moment to consider your privacy. Be cautious about what you post on social media, or consider closing your accounts altogether until your case is resolved. Ask your friends and family not to post photos of you on their social media pages as well. This is a time in your life when it is in your best interests to keep your private thoughts and photographs strictly private. 

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