You post a photo from your nephew's birthday party, smiling for the camera. To you, it is one good afternoon in a hard month. To an insurance adjuster, it may look like proof that your back injury isn't serious. In a custody case, a late-night post or an angry comment can become an exhibit in front of a judge.
Social media is part of everyday life. But once you have an injury claim or a family law case, what you post can be used against you.
How posts and photos become evidence
Insurance companies and opposing lawyers routinely look at social media. In a personal injury case, they look for anything that seems to contradict your injuries: a photo at the gym, a hike, a dance at a wedding, or a comment like "feeling great today." In a family law case, the other side may look for posts about drinking, new relationships, spending, insults aimed at the other parent, or check-ins that conflict with your parenting schedule.
Posts don't have to be fair to be harmful. A photo shows one moment. It doesn't show the pain medication you took to get through the party, or that you went home early and spent the next day in bed. You can explain, but you will be explaining from behind.
Social media content can also be requested formally in discovery, the stage of a case where each side must share relevant information. Courts can order you to produce posts, photos and messages that relate to the issues in the case.
Why privacy settings are not enough
Setting your accounts to private helps, but it is not a shield.
- Friends and followers can screenshot and share what you post. Mutual friends, relatives and co-workers sometimes end up passing things along.
- Other people can tag you in their photos, which may be public.
- Old posts, profile pictures and comments on other people's pages may still be visible.
- Private content can still be requested in discovery if it is relevant.
The safest approach is to assume that anything you post, comment on or send could one day be read by the judge, the jury or the insurance company.
Don't delete old posts
Your first instinct may be to scrub your accounts. Don't. Once a claim or lawsuit is likely, you have a duty to preserve evidence that could matter to it. Destroying or hiding evidence is called spoliation. If it happens, a judge can impose penalties, and a jury may be told it can assume the deleted material would have hurt you (see CACI No. 204). That can do far more damage than an awkward photo ever would.
Instead, stop posting, tighten your privacy settings and talk to your lawyer about anything you are worried about. We can help you deal with a bad post honestly. We can't undo a deletion.
Be careful messaging the other party
Texts, direct messages and emails are just as easy to screenshot as posts. In an injury case, don't message the person who hurt you, their family or their insurance company about the accident. Let us handle that communication.
In a family law case, assume every message to your ex or co-parent will be shown to a judge or a custody counselor. Keep messages short, polite and focused on the children: schedules, school and health. Don't argue, threaten or vent. If there is a restraining order, any contact, including on social media, may violate it. A co-parenting app can help keep communication calm and on the record. Our child custody page has more on how judges view co-parenting.
Practical do's and don'ts
Do:
- Pause posting until your case is over, or post only things that have nothing to do with your health, activities, money or relationships.
- Set every account to private and review who can see and tag you.
- Ask friends and family not to post photos of you or talk about your case.
- Tell your lawyer about any posts that worry you, including old ones.
- Keep copies of any harmful messages the other side sends you.
Don't:
- Delete posts, photos, messages or accounts.
- Post about your accident, injuries, case, settlement or court dates.
- Check in at gyms, bars, trips or events.
- Say anything negative about the other parent, the other driver or the judge.
- Accept friend requests from people you don't know.
What this means for you
Assume everything is public, even with privacy settings on.
Never delete. Stop posting instead, and talk to your lawyer.
Keep messages to the other side brief and respectful, or let your lawyer do the talking.
Have questions about your case?
If you have an injury claim or a family law matter and you are worried about something online, tell us early. We would much rather help you handle it now than be surprised later. Browse our injury FAQs or family law FAQs, or request a consultation. Call (562) 612-7806; we are available 24/7.
This article is general information, not legal advice. Every case is different, and past results do not guarantee a similar outcome.