How social media affects compensation claims
5th Sep 2019
Social media has become part of people’s everyday life. But did you know that social media posts have legally been used as surveillance evidence in compensation and Super / TPD claims? Your clients should avoid posting things that could be brought up at a later date and potentially affect their CTP, workers' compensation, slip and fall or Super / TPD claims. Even outwardly innocent social media posts can be detrimental to the success of a claim.
The case of Digby v The Compass Institute Inc & Anor  QSC 308 established that insurers don’t need to inform the plaintiff when they intend to use Facebook or social media data.
The best course of action for a client who is commencing a compensation claim is to quit Facebook and social media entirely. If your client is unwilling to go cold turkey and still wishes to be on social media, they will need to be vigilant about what they post.
What to avoid posting on social media
When your client has a pending compensation or Super / TPD claim, they need to avoid posting anything that invalidates their compensation claim (or could be seen to do so).
Clients should not post:
- Photographic evidence of strenuous activity – like sports, jet skiing, running, weightlifting or swimming.
- Verbal evidence of strenuous activity – just talking about having done or enjoying certain activities can potentially damage their claim.
- Posts that contradict your client’s claimed level of pain – what contradicts their claim depends on the nature of their claim. For example, if your client claims they need a neck brace all the time, a single photo without your client wearing it may damage their compensation claim.
- Admitting liability – social media is not private. No matter how safe you think it is, it's not the place for your client to discuss possible liability or anything to do with a claim.
Ultimately, to avoid social media damaging your client’s compensation claim, they need to consider each post carefully and if it can be seen to contradict their claim. Insurers will not hesitate to use surveillance on clients and their posts to reduce their compensation payout.
Your client should also avoid posting things that could be used against them less directly, but which still may affect their compensation payout, such as:
- Comments on legal advice or progress of the compensation claim – stating anything about the claim or what is happening between the client and you as their compensation lawyer isn’t wise, and your client may lose legal professional privilege.
- Your client’s intended locations – providing a location makes it easier for the insurers to track your client down. They may hire surveillance to watch your client.
- What your client’s friends are posting – even if your client is watching their own posts, information can be used against them from posts of their friends and family. So make sure that your client informs their family and friends what not to post as well.
- How often your client posts – the frequency of posts could be used against your client. It may be construed to show less disability than is being claimed.
- Where your client posts from – as with how often your client posts, the places they are posting from may also be used against their claim. If your client’s compensation claim involves not being able to get around, the locations of their posts may be used against them.
- Emotional content of posts – if there is a psychological element to your client’s compensation claim, your client should make sure the content they are posting does not contradict this. It can feel natural to pretend to be happier than you are on social media. If your client is including depression or other psychological hardship as part of their claim, a post may damage their case or even get it dismissed.
Impact of social media on compensation claims
Insurers can’t use information that they don’t have, so make sure to warn your client to pay close attention to what they and their social media friends post.
At the end of the day, however, the impact of social media on your client’s compensation claim will be up to them.
A version of this article first appeared on the Firths – The Compensation Lawyers website, and can be found here. It has been republished with the author’s permission.
Stephen Firth has been a solicitor since 1981 and an Accredited Specialist in Personal Injury Law since that scheme was first introduced in 1993. He is a foundation member of the Australian Plaintiff Lawyers Association (now the ALA).
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).