Social media is a term that has become familiar to us all over the past decade. It is the term used to describe the social interaction that occurs among people/users through the creation of a profile and then the sharing and exchange of information and ideas in virtual networks. Some of the most common social media sites include Facebook, Instagram, Twitter, YouTube, MySpace, LinkedIn – the list goes on and many of us are members of at least one, if not several, of these sites.
Social media can be a wonderful forum through which to stay in contact with friends and family. It can be very useful to assist with developing networks relevant to our profession, vocation, recreational pursuits, sporting interests, hobbies, etc. However, the use of social media is not without risk. There are real concerns about things such as privacy, the ownership of material and content, inappropriate use and criminal activity to name but a few.
There are many stories concerning the use of social media by employers to make decisions about the hiring of potential employees and the firing of existing employees. By updating statuses and expressing personal opinions, individuals can be “judged” on the basis of their social behaviour. Sites like Facebook are often becoming the first port of call for employers and others to check on the activities and opinions of individuals.
As is the case with employers, the TAC and other insurers have woken up to the wealth of information that can be found on Facebook and in other social media forums. Not only is it contained in what people post about themselves in status updates, but also through photos, check-ins, locations services, etc.
Facebook in particular is now so popular that a surprisingly large number of people we represent have Facebook pages.
The natural tendency of those of us who have Facebook pages is to post information about social events, travel, interests and activities. Posting photographs of these activities is commonplace.
The natural tendency of most people is to post on Facebook when they are engaged in activities that are fun and enjoyable. The tendency is to portray things in a positive light. This is largely because posts on Facebook are going to be viewed by either family members or friends. Many Facebook users post photos or are ‘tagged’ in the photos of friends and family. Similarly, the natural tendency when being photographed is to smile and to appear to be having a good time. However, status updates, check-ins and photos on Facebook and other social media sites are often reflective of only a moment in time.
Posts on Facebook, be they status updates, photographs, etc. are often not representative of a person’s real circumstances. This certainly applies in the case of people who are badly injured in transport accidents. Even though someone may be suffering with the disabling effects of an injury, it does not mean that the person will stop living life altogether.
Even though an injured person attends and celebrates birthdays and weddings of family and friends, it doesn’t mean that they aren’t suffering whilst doing so. An injured person might decide to take a holiday to escape temporarily to a warmer climate or to have a change of scene to escape the reality of their limited lifestyle, but it doesn’t mean that the pain and discomfort isn’t present. An injured person may be seen smiling in a photo. Their injuries do not prevent them from being able to smile. The pain does not cause them to forget how to laugh on occasions. However, beyond the moment that is captured, to laugh and smile is probably a very difficult thing to do, although not impossible in the right circumstances. In reality, Facebook and other social media sites often present an unrepresentative, one-sided account of life.
It is now commonplace when we make submissions to the TAC seeking a “serious injury” determination or when we run a common law damages claim, for TAC to routinely search Facebook to see whether the claimant has a Facebook page.
If the privacy settings are such that the public at large can access the Facebook page then the TAC is able to view all of the information on the person’s Facebook page. This includes status updates, check-ins, photographs and posts and photographs where the person has been tagged by friends.
The TAC is able to learn quite a lot about the person’s life by doing this, but as previously mentioned, it is an unrepresentative, one sided view of life – a brighter, more positive representation. Sometimes, what they see on Facebook raises their suspicions about whether the person is as badly injured as they claim. The perceptions created can make a claim much more complicated and difficult to prove.
Increasingly, we are finding that the TAC demands material from a client’s Facebook account.
The Courts have not yet reached a final view about whether material posted on Facebook must be disclosed. However, it seems probable that material posted on Facebook will have to be disclosed where the privacy settings allow the public at large to view material contained in the person’s profile. However, where a person has their privacy settings adjusted to only allow those who they accept as friends to view the information then the Courts tend to be leaning towards keeping that information private.
We recently had an insight into the Court’s attitude in a TAC Serious Injury Application that we ran in the County Court of Victoria. The TAC claims lawyer had obtained from the Facebook account of our client’s husband half a dozen photographs. Our client had been tagged in those photos. They were taken in Bali when she and her husband had attended the wedding of her oldest high school friend. She was on the beach. She was dressed for a wedding. She was smiling. However, the photos only told part of the story. Nevertheless, the TAC tried to use the photos to suggest to the Court that her injuries were not having the impact on her life that she was claiming. They also used these six photos to suggest that her own Facebook profile probably contained many more similar instances and she should be required to produce everything on her page to prove otherwise.
We knew this not to be the case. Prior to the wedding she had been bed-ridden for several days because the flight to Bali to attend the wedding had caused her to suffer with a severe aggravation of her pain levels. She had been taking strong pain killing medication to overcome this. Whilst she attended the wedding, she remained for only a little under two hours, not being able to cope with her symptoms.
We defended the TAC’s application to obtain access to our client’s Facebook page. We argued that the existence of the six photos that TAC had seen did not prove that there was anything else of relevance. We suggested that TAC was unreasonably speculating and merely ‘fishing’.
Ultimately, the Court determined that TAC would not be given access to our client’s Facebook page. It did so on the basis that there was no evidence that any further material would be found on that page that would be relevant to the issues being adjudicated upon. The Court determined that because our client had her privacy settings set to only allow those she accepted as friends to view material contained on her page, that to allow TAC access would be akin to allowing TAC to enter her house and look through her photo albums, diaries and other private information without her invitation to do so.
Accordingly, we think it would be sensible for those people with Facebook pages to adjust their privacy settings so that only friends can view their pages. In this way, the TAC will not be able to access material on a routine search and in the event that it seeks to compel the claimant to produce material from Facebook, there is an argument that the material is in fact private and should not be disclosed. Further, it would be unwise to accept a friend request from anyone not known to you.
For further information about how Facebook and other social media can harm a claim for TAC compensation, you should telephone either Peter Burt or Clara Davies, specialist TAC Compensation Lawyers of Burt & Davies, Level 11, 451 Little Bourke Street, Melbourne. They are both Accredited Personal Injury Lawyers who practice exclusively in transport accident compensation & TAC Common Law Claims.
Telephone (03) 9605 3111 or freecall 1800 109 940
© Burt & Davies 2014