By Legal Futures Associate, National Accident Law
Social media has become a pivotal tool in personal injury claims, offering both opportunities and challenges for legal professionals.
At National Accident Law, we’re discussing how social media can impact personal injury claims, guiding solicitors and legal professionals on how to effectively advise their clients to improve the management of cases.
Using social media as evidence in court
Social media content can be a double-edged sword in personal injury claims, as either party may introduce it as evidence. While it can strengthen a claimant’s case, providing photographic or geographic proof of an incident or injury, it can also be used by the defendant to undermine it and impact credibility.
As solicitors, we must carefully assess the admissibility of social media evidence in court. If you are considering using social media within a case, be sure to consider factors such as:
- Relevance: The post must be directly related to the issues at hand.
- Privacy considerations: Respect for privacy must be balanced against the need for evidence.
- Authenticity: The evidence must be verified as genuine.
- Risks: Once you have opened the floodgates, there is no going back. Are you certain there are no negative posts that can harm the claimant? Once you disclose some social media evidence, it is arguable that all relevant entries are disclosable and this means solicitors having to spend time and thus expense, which they may not recover, with an extremely uncertain outcome as the reward.
It is important to advise clients that, although only a small percentage of personal injury claims proceed to trial, the potential impact of social media evidence should not be underestimated – public posts can be used and even taken out of context to support the defendant.
How social media can be used as evidence
For the claimant, social media can be a powerful tool to support their case, particularly in establishing the timeline and severity of injuries. Posts made shortly after the injury can provide hard proof that may be more compelling than retrospective statements.
Defence teams often scrutinise the claimant’s social media activity to find contradictions or challenge the extent of the injuries claimed, often using it as a way to diminish the claimed overall effect on the claimant’s life.
Even posts unrelated to the injury can be misinterpreted or taken out of context and twisted to fit an alternative narrative, potentially harming the claimant’s credibility.
It’s important to explain to your clients the risks of posting content that could be misconstrued and encourage them to refrain from posting anything injury, recovery or claim-related on their accounts until the claim is finalised in order to mitigate this risk.
The impact of social media on credibility
A claimant’s credibility is central to personal injury claims, and social media activity can significantly influence the court’s perception of their credibility.
Posts that show the claimant engaging in activities inconsistent with their claimed injuries can seriously damage their case. For example, a claimant alleging severe mobility issues might have their credibility questioned if social media posts show them participating in physical activities even if it isn’t particularly strenuous in comparison to what the claimant would previously have done. This could be a claimant who would regularly rock climb pre-injury but now is limited to hill walking.
Social media and settlement negotiations
Social media can thus be used by defendants to argue for lower settlements, as they will argue that the posts undermine the claimant’s credibility. With the risk of a finding of fundamental dishonesty, claimants may feel powerless to reject low-ball offers due to the myriad of risks that involves.
Best practices for clients’ social media use
To mitigate risks, we recommend advising clients on the following best practices regarding social media use during a personal injury claim:
- Privacy Settings: It’s always best if clients set their social media accounts to private but solicitors must be very careful advising on this point if they are aware of harmful posts.
- Avoid posting about the incident: Clients should refrain from posting any content related to their injury or case. It is too easy for these to be misconstrued.
- Discourage tagging: Friends and family should avoid tagging the claimant in posts that could be relevant to the case. Again, it is too easy for these to be misconstrued.
- Avoid deleting content: Deleting posts can appear suspicious and may be construed as an attempt to destroy evidence. If there is a risky post live, you should prepare your case with this in mind and brief the client on the risk factors. On no account must you expressly or impliedly advise a client to delete posts.
Expert advice: To review or not to review clients’ social media use, that is the question
John Kushnick, Legal Operations Director, says: “Once you have opened the Pandora’s box that is social media there is no going back.
“If there is no suggestion of dishonesty, then the claimant’s solicitors do not have to review the claimant’s social media accounts, as per Williams-Henry v Assoc British Ports [2024] EWHC 2415 (KB). This is a sensible and obvious point. How can claimant’s solicitors be expected to undertake an expensive review in every case when the cost of doing so will be challenged by the defendants? It is not up to the claimant’s solicitors to make the defence for the defendants!
However, if the defendants do raise allegations of dishonesty, then this does put the claimant’s solicitors on notice that they must review all social media accounts. It is therefore vital to get the claim allocated to the multi-track and for costs to be estimated for what can be a very expensive review process.
This brings us to the dangers inherent in claimant’s solicitors reviewing a claimant’s social media footprint when there are no allegations of dishonesty.
In Lock v Ravi-Shanker [2021] EWHC 3247 (QB), the claimant’s solicitors had to disclose unhelpful Facebook posts which came to light they had access to. These are, of course, discoverable under the normal disclosure rules.
It would usually be best to avoid the risks inherent in this. Solicitors would be well advised never to even think about telling their clients to hide or delete such posts. This seems to be an obvious point but worth reiterating following the unreported Kennedys’ holiday sickness case from 2021, which cost the claimant’s solicitors £37,000 for doing just that.”
Remember to always consider both legal and ethical factors when advising clients on their social media use. The most significantly unethical and potentially unlawful action would be to suggest that clients delete existing posts, as this could be seen as a spoliation of evidence.
And, of course, advising clients to post content that misrepresents their condition is highly unethical and could lead to accusations of contempt of court, a serious criminal offence.
