Twitter ye not: the perils of social media
Posted by: Tim Shaw, Minster Law.
This is the age of social media. We all use it to some degree or other and most people simply use the default settings, which often allow our posts, photos, videos and comments to be viewed and shared by anyone and everyone. Here at Minster Law there are guidelines and policies dealing with social media posts made on behalf of the business to ensure consistency and appropriateness. Unfortunately, many of our clients aren’t so lucky.
In many cases, the single best weapon open to the Defendant is the Claimant’s own social media presence. Insurers now regularly employ investigators to examine Facebook, Twitter and other social media outlets in order to find evidence which might undermine claims.
When two opposing drivers in a car accident who claim not to know each other are shown to have mutual friends on Facebook, alarm bells are triggered for motor insurers. If their investigations indicate that these supposed strangers are in fact Facebook Friends, it is almost inevitable that the insurers will sniff fraud and tailor their inquiries accordingly.
Some people seem to have an almost insatiable desire to record their everyday lives on social media. Photos of food and videos of cute kittens are one thing, but evidence which contradicts a Claimant’s account of the nature and extent of the injuries suffered in an accident can be massively damaging to a claim: a semi-pro footballer scored an own goal when he tweeted about playing football. Unfortunately for him, the tweet was sent only a day after a road accident which had supposedly left him with injuries to his neck and back. He then compounded his error three weeks later by boasting on Twitter about scoring in the FA Trophy. The hapless footballer tried to discontinue his claim when he was found out but the insurer persisted and a finding of fundamental dishonesty was made against him, together with a costs order for £11,000.00. Even worse, criminal proceedings followed and he was ultimately convicted of contempt of court and given a suspended prison sentence.
In a similar case the insurers used evidence from a football team’s website (rather than the Claimant’s own social media output) to prove that a man had dishonestly claimed he was unable to play football after an accident when he had in fact played 27 matches that season and had been awarded “man of the match” on numerous occasions.
It’s not only the usual suspects of Facebook, Twitter and Instagram that insurers can look at: any app or program that allows you to connect with the world is fair game. Take Strava, an app which records your runs, rides and swims and logs details of your performance as a whole and at a number of segments along the way. I’ve had experience of a client who claimed he was unable to ride his bike after an accident. I knew he had a Strava account and checked it out: it showed he had ridden multiple times, sometimes distances of 50 or more miles, during that period. A long, hard chat with the client followed and he decided to restrict his claim as a result.
The difficulty is that the bad apples make insurers suspicious of everyone and in some cases innocent posts on social media have been construed by insurers and judges so as to undermine a client’s claim.
Which brings us to the million dollar question: what should we be doing to advise our clients about social media? We can’t act as gatekeeper, checking every Facebook post or tweet for them before it is sent, but Leeds barrister Gordon Exall is of the firm opinion that lawyers have a duty at least to warn their clients about the use of social media within the context of litigation (he has published a number of articles relating to litigation and social media, helpfully collected here.
In some cases the lawyer’s duty may be limited to advising clients about the possibility of searches being made against their social media presence by or on behalf of insurers in the hope of finding discrepancies in their stated case, whether in relation to the accident circumstances or the nature and extent of injuries and losses claimed. It may also be sensible to recommend that clients review their online privacy settings and even suggest that they only accept “friend” or “follow” requests from people they know personally.
In my opinion, the key message to give clients is: Always assume that the other side’s insurance company are looking at your social media output, so don’t put anything on social media that you would not want to be seen by them.
That’s not to say that clients should swear off social media completely. Indeed, the most seriously injured may otherwise have little contact with the outside world and there are many supportive online communities that can provide support, advice and empathy. However, clients should be advised to think long and hard about each and every post they make on social media and be aware that it could be used to discredit them.