Smiley Faces on Facebook: Evidence of Faked Injuries?

A few decades ago, there was a big, game-changing trend in personal injury and insurance litigation: law firms and insurance companies would hire private investigators to secretly film plaintiffs – usually outside their homes. The idea was to catch them engaged in strenuous physical activity, as evidence that the extent and severity of their injuries have been exaggerated. That tactic is still used to this day.

But as we conduct more of our lives online (who needs to go outside, anyway? Vitamin D is overrated), it becomes increasingly useful, in terms of information gathering, to observe our online activities.

Some tort defense attorneys are now subpoenaing (also seen here) social networking sites like Facebook and MySpace (I would make a pithy remark about how nobody uses MySpace anymore, but it would just be cruel at this point) for private communications of users who are suing their clients in personal injury matters.

Apparently, the “tone” of personal communications, including the use of smiley faces, might be relevant in proving that a plaintiff is faking their injuries. That seems like a bit of a stretch. People use smiley faces (or “emoticons”) all the time in online communications, and they can mean anything. Much like profanity, they’re little more than punctuation, at this point.

Of course, I doubt that they’re relying solely on the plaintiffs’ use of emoticons; they would have to look at the substance (a term I use loosely) of these communications, with the use of smiley faces being one small part.

For example, the story linked above mentions that one plaintiff mentioned a planned vacation, suggesting that her injuries were not as bad as she claimed, if they existed at all.

There’s no denying that this evidence is extremely useful for attorneys who defend against personal injury claims. After all, when a person sues for personal injuries and emotional distress, they’re voluntarily putting their physical and mental health directly at issue. Furthermore, defendants in these cases have the right to defend themselves in court. That right includes access to evidence that might exculpate them, even if that evidence is held by third parties (in this case, social networking sites). This is done through the subpoena process.

However, some of these networking sites are fighting the subpoenas (which they certainly have a right to do), on the grounds that complying with all of them would be too costly and onerous, and that the messages could be just as easily obtained from the plaintiffs through the discovery process.

While they aren’t likely to be raised (or at least not argued particularly vigorously) by the owners of social networking sites, there are also serious issues concerning privacy. Courts have ruled that plaintiffs who voluntarily (remember, you don’t HAVE to sue anyone) put their physical condition in issue must make their private communications on social networking sites available to defense counsel. The court reasoned that plaintiffs surrender any legitimate expectation of privacy with respect to such information when they put their physical condition at issue.

While nobody is disputing the right of defense counsel to gather the necessary evidence to mount an effective defense, if we’re going to go down this road, we need to ensure that there are safeguards in place to protect privacy. When you sue for a personal injury, you may lose your expectation of privacy with respect to your physical condition, but that doesn’t mean you lose your expectation of privacy in every other sphere of your life.

When people send messages on social networking sites, they probably aren’t talking about their physical condition, at least not directly. While a person may reveal information about their physical condition in a personal message (“I’m going to go to the store, and I think I’ll take my unicycle for a spin afterwards” would definitely hurt a personal injury plaintiff’s case), that information is usually not the main topic of discussion, and is contained in a message that may also reveal information that’s personal, embarrassing, and/or irrelevant to the case at hand.

When this is the case, some type of safeguards must be put in place to ensure that plaintiffs don’t have embarrassing, personal information (that’s irrelevant to the case) aired to the public. That’s difficult, since a jury will have to see the evidence.

Perhaps a neutral third party could review the communications before they’re aired to the jury, and create a summary of the incriminating evidence, with as little context as possible. Or perhaps it should be viewed by the judge, who could then summarize it for the jury.

Of course, private, irrelevant information can be gleaned from more “traditional” methods of sleuthing, so maybe we simply need to accept that nothing we do will ever be 100% private. And maybe, just maybe, people should stop exaggerating or outright manufacturing injuries when they file personal injury lawsuits, because, if you do, the chances that you’ll be found out get better every day.