How Social Media, Your Smart Phone and Apps Can Impact Your Case

By Attorney Jesse S. Shapiro

It’s interesting to see how much has changed in the world of social media since 2008. At that time, MySpace was the dominant social networking site and social media was still largely in the hands of people under the age of 25 and techies.

Today, we live in a world with over 1 billion Facebook accounts (including over 750 million mobile users), over 1 billion Google+ accounts, over 500 million registered Twitter accounts and 200 million Instagram accounts. Current users of social media are of all ages, occupations and interests.

Transparency vs. Privacy

Social media lets us easily share information, keep up with friends and family and, of course, let everyone know when, where and what we’re eating. However, though most social media outlets allow users to manage their privacy, the majority of users don’t take the steps to properly manage their privacy settings. Plus, even with heightened privacy settings, there is no guarantee that information published on social media will remain private.

The world of apps allows similar transparency. We can record walks, bike rides, and runs, tracking the amount of exercise we do (think MapMyRun or MyFitnessPal). Wearable fitness trackers like the iWatch or Fitbit can even monitor our steps and heart rate. All this information is retained in data that can be made public.

• Your posts can be used against you.

As technology advances, the law follows. In past years it has become very clear that posts on Facebook, Instagram and other social media platforms are “discoverable”—meaning, you would be required to copy and hand over these posts to a defense counsel in formal discovery requests, such as interrogatories. Further, any failure to preserve such posts could be sanctionable against the party who destroyed or deleted them. I have recently seen requests for data from apps such as MapMyRun, MapMyRide and FitBit. And, all the other fitness tracking exercise apps are likely to be discoverable, as well.

Insurance carriers and/or employers are also mining the internet for information, statements and photographs which they can use to attack your character/credibility, establish that you are not as hurt as you say, or try to otherwise invalidate your claims. As a workers’ compensation attorney, I have seen it happen in my cases, and it has happened to friends and colleagues, as well.

• Be careful what you say–and to whom!

At Wilson, Reives & Silverman, we always advise our clients to be careful about whom they speak to when involved in a legal action. But you need to know that “speaking” now includes any “dialogue” you keep with your social media accounts, mobile apps, computer apps and other electronics. Stop and think before you post and record.

Sometimes, we can say something on video or write something down when emotions are high. As daily frustrations grow, we sometimes simply need a space to vent. Instead of having a private conversation in person or even on the telephone, many people now turn to Facebook, Instagram or Twitter to share their feelings, perhaps in hopes of encouragement from not simply one but 20, 50 or 100 people with whom they are connected. Unfortunately, if discovered, such posts, tweets, photos or video posts can be taken out of context and put into a negative light.

The old saying that, “A picture is worth a thousand words” cannot be truer than in the context of a legal proceeding. A single photo can take situations far out of context. A brief post meant to be an inside joke amongst friends can be seen as something entirely different by a claims investigator.

The Lifetime of Social Updates

The saying of the electronic age is: “The Internet is Forever.” Once words are written or a picture is taken and shared, you could find yourself in a situation where you have to try to explain it away or put it into its proper context to a claims investigator, a judge or even your own attorney. These posts can put you squarely behind the 8-ball. Though a single post or picture may not ruin your case, it can certainly put a wrench in the process.

Here are some tips to consider:

• Shut them down.

Without a doubt, this is the best action you can take to protect your privacy and your workers’ compensation case. Terminate your social media accounts and get off the social grid. It seems extreme, and it may leave you feeling completely out of touch with friends and family, but you will survive. And, taking this step gives your case a better chance at surviving a social media lawsuit.

• Be secure.

If you feel you must keep your social media accounts alive, set your privacy settings and options as high as possible. Accept friend requests only from people you really, truly know—stranger danger even applies in the adult world!

• Think before you post.

If you’re angry, write it, delete it and walk away. If it’s meant to be funny only to a couple people or meant to be a joke, say it in person. AND DO NOT write, post, or say anything that has to do with your case…especially conversations with your attorney or doctor. This could revoke or at least partially revoke your privilege rights and seriously harm your case.

It’s a dangerous world out there. However, by staying smart, being mindful of your audience and keeping your emotions from taking over, you can navigate these waters and protect your rights.