Social Media and Personal Injury Claims: What You Should Be Aware Of

It’s fun to share your life on social media but posts can reveal a lot about your day-to-day activities. This information can be used as evidence in court cases.

In a US case, a man claimed that a forklift accident at work had left him with permanent injuries. Information from his social media profiles potentially contradicted his story and a court ordered that his social media profiles were admissible as evidence.

People who are pursuing personal injury cases should avoid posting information online that could affect the outcome of their case.

Social media investigations

Photographs, comments and videos posted on social media are admissible as evidence in court.

Lawyers and insurance companies have dedicated teams that scour the internet for any information, including comments and images, that can support or contradict a personal injury claim. In fact, any case (civil or criminal) may give rise to a social media investigation.

If you twist the facts of a case or simply overstate your mental, physical or emotional injury on a social media platform, it could compromise the success of your claim. In the worst-case scenario, you could be charged with fraud – a criminal offence that could land you in prison.

In addition to your own social media posts, family and friends’ posts are fair game during an investigation. Photos that you are tagged in can potentially be submitted as evidence.

Ways that social media evidence could be used in personal injury cases

Social media has become a common tool for gathering evidence in personal injury cases. If you make a claim, lawyers will almost certainly look at your social media profiles.

Damaging your credibility

Any posts that call a claimant’s credibility into question can be used to undermine a case.

In one case, for example, a claimant said his injuries severely limited his social life. However, his Facebook account included frequent posts about partying and travelling.

The fact that the claimant then deactivated his Facebook account to “hide” the posts further undermined his credibility.

Contradicting your claim

Photos, videos, text posts and other data can be used to suggest that your claim is inaccurate or false.

Even data such as your geolocation on a specific date can be used to contradict facts presented as part of a claim.

In a case where a cyclist wanted to claim compensation due to a bike accident that he said severely injured his knee, data from Strava contradicted his claim. 

Admission of fault

There have been cases where someone has inadvertently admitted on social media that they were fully or partially at fault in a personal injury case.

Talking about your case on social media can have unintended consequences, even if your claim is valid and you weren’t at fault.

These are the type of posts that lawyers will scour your social media accounts to find.

Admissibility of social media as evidence in South Africa

Content obtained from any social media channel can be admitted as evidence in a South African court, as long as it meets specific criteria, such as relevance, authenticity and originality.

Ultimately, it’s up to a court to decide what social media information is admissible as evidence based on the facts of a case.

Both Penny Sparrow and Velaphi Khumalo faced legal consequences due to racist comments made on social media. In 2024, voice notes circulated on WhatsApp were used to convict a senior figure from Operation Dudula.

Privacy rights vs. social media as evidence

Even if social media content is unlawfully obtained (accessed without the permission of the author or owner), it is possible for it to be judged as admissible as evidence.

In 2016, a court admitted defamatory statements made on Facebook, despite the material having been obtained by hacking into a respondent’s computer.

The court document acknowledges that the evidence was obtained unlawfully and constituted a violation of the defendant’s right to privacy.

However, the evidence was eventually ruled admissible because it was relevant in establishing that the defendant conducted himself in a duplicitous manner.

Social media in personal injury cases overseas

There have been many cases abroad where the court allowed social media evidence in personal injury claims. As social media continues to evolve, using digital evidence in personal injury cases will likely become more common.

Here are a few examples of social media evidence being admitted in personal injury cases:

• Romano v. Steelcase Inc.: a landmark US case where the court allowed access to the plaintiff’s private Facebook and MySpace pages.
• Nucci v. Target Corp: a slip-and-fall case where the court ruled that social media photos are not protected by privacy rights when relevant to the case.
• Martin (Robert Gordon) and Heather Elaine Martin & Ors vs. Gabriele Giambrone: a case from Northern Ireland where privacy settings on a Facebook post did not affect the admissibility of evidence.
• Forman v. Henkin: this case expanded the scope of discoverable social media evidence by ruling it was admissible if they contained relevant information.

Don’t let social media trip you up

If you’re instituting a personal injury claim or awaiting its settlement, protect yourself by following these simple steps:

• stop posting comments and photographs on social media sites and, if necessary, de-activate your accounts
• never post comments or photos of your accident or injury online
• configure the highest possible privacy settings on your computer
• activate settings to ensure you’re invisible to internet searches
• be wary of new “friends” online; they may be part of an investigating team
• remove all photographs of yourself, with the exception of headshots, from the internet
• retain all computers, tablets and cell phones, or it may be construed that they were intentionally destroyed to hide evidence
• don’t join website or chat forums.