Part 1: Social media as evidence

Gone are the days when life was kept private. Whilst not every person is active on social media platforms it is safe to say that a large extent of the Australian population is. Facebook, Instagram, Twitter, TikTok…the list goes on! People posting comments, photographs and videos often do so in a manner that paints them and their lives in the most positive way (including, at times, in a way that suggests life is going better than it is).

But what happens when you suffer an injury or illness and pursue a compensation or insurance claim? Can your social media usage have an impact? The short answer is yes!

Defendants and insurance companies often search Google, Facebook, Twitter, Instagram, YouTube, LinkedIn and so on to find out information about you that may assist them to defend or minimise your claim. Generally, they will be looking for information about activities that you can do, other injuries unrelated to your claim and evidence of criminal or inappropriate behaviour, amongst other things.

Depending on the type of claim you are pursuing (e.g. damages claim for injuries, insurance claim for disability etc) you may have a proactive duty of disclosure of records to the party you are claiming against. In some cases, this may include disclosure of some of your social media posts and interactions. Whether or not you will have an obligation of disclosure is very case specific and not always straight forward. Suffice to say, the things you post may form part of the evidence relevant to your claim.

There are two stages to personal injuries claims in Queensland often referred to as the “pre-litigation” and “litigation” stages.

Pre-litigation stage disclosure

In the pre-litigation stage, the claim is governed by a process set out in legislation, for example (but not limited to) the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) and Motor Accident Insurance Act 1994 (“MAIA”). These legislative regimes define the scope of disclosure each party must comply with:

• MAIA: the claimant must provide the insurer with copies of reports and other documentary material (including written statements made by the claimant or by witnesses) in the claimant’s possession about the circumstances of the accident or the claimant’s medical condition or prospects of rehabilitation

• WCRA: parties must give each other copies of relevant documents about the circumstances of the event resulting in the injury, the worker’s injury and the worker’s prospects of rehabilitation. Relevant documents are defined as reports and other documentary material, including written statements made by the claimant, the worker’s employer, a contributor, or by witnesses

It is the reference to documentary material and the non-exhaustive description of what that includes that may capture some social media posts.

Litigation stage disclosure

Once a claim becomes litigated (i.e. a claimant commences Court action) the parties must comply with the Uniform Civil Procedure Rules 1999 (“UCPR”). The UCPR includes rules relating to disclosure.

• UCPR rule 211: A party to a proceeding has a duty to disclose to each other party each document in their possession or under their control that is directly relevant to an allegation in issue.

The definition of document in rule 211 is very broad and includes any material from which sounds, images, writings or messages are capable of being produced or reproduced.

“But can’t I just delete my social media history?”

If you have previously made posts on your social media that you think may be unhelpful to your claim it may be tempting to delete the posts but doing so could have very serious (and criminal) consequences.

In Queensland, the Criminal Code 1899 includes the following relevant criminal offences:

• Damaging evidence with intent – section 129: A person who, knowing something is or may be needed in evidence in a judicial proceeding, damages it with intent to stop it being used in evidence commits a misdemeanour

• Attempting to pervert justice – section 140: A person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime

Both the section 129 and 140 criminal offences attract a maximum penalty of 7 years imprisonment.

In addition, the legislative regimes governing the personal injury claims processes in Queensland also contain offence provisions relating to the giving of misleading information or documents that can attract a monetary penalty or period of imprisonment.

Part 2: Case examples of social media and personal injury claims

Next week we will take a look at some of the real-life examples of Courts dealing with personal injury claims and social media as evidence to understand the real world implications of this topic.