The concept of insurers defending injury claims using social media evidence is not new. After all, the online public domain is like any other recorded medium for
stalking monitoring, well, the public. It’s getting social ‘evidence’ to stick that’s always been the sticking point.
The lines blur between what’s considered private and public, thus what’s admissible as evidence. Also, questions arise about what we share via our public profile(s).
Do our facebook status updates reflect what’s going on in our offline life? Or is what we share a sham, keeping up a misguided pretence for those we would impress?
Vanity is becoming a nuisance, I can see why women give it up…
It could well be that our vanity is our own undoing. Not only in court, but IRL, too.
For instance, when we share that shot from the racecourse when we were supposedly ‘ill’. To our friends and family, even some tolerant bosses, these instances are mere faux pas. Yes, you looked so ill as you collected on that 33/1 outsider that came in for you at Cheltenham. Mm, or not.
But what about when a judge or jury has to preside over such evidence? Should they take what they see literally? If someone’s smiling in a recent shot, then all must be good in their world, right?
The Camera Never Lies – or does it?
In the past, social media evidence hasn’t held much sway with judges. First, council has to prove potential relevance to a judge before they’ll order its use if it’s not in the public domain. Then the court has to prove that the content extracted is a true reflection of the plaintiff/defendant’s lifestyle for the qualifying period.
In countless cases, judges have dismissed the use of social media. Yes, individual shots may be posted to ‘[keep] up appearances’. But like the age old swan, the grace on the surface may not reflect any submerged turmoil.
In Canada, there has been a development, though. And it will serve as a warning for anyone making a claim who continues to use social, in this case facebook, whilst they’re ‘suffering’.
The case of Sarah Tombasso: consistently inconsistent
Sarah Tambosso purported herself as a once happy-go-lucky individual. In 2008, she was involved in the first of two car accidents that she used to build up her case for damages. The undisclosed amount was said to be in the region of ‘hundreds of thousands of dollars’.
Her second car accident, in 2010, only served to aggravate the conditions from her previous collision. The conditions cited were PTSD and depression.
The result, according to her council, was that she’d turned into a ‘homebody’. Gone was the social butterfly she once was, the internet now the only engagement she had with friends. Moreover, she related to her psychiatrist that,
“I’m not a happy person. My life sucks.”
Not what the doctor ordered
The evidence gathered, however, portrayed a different lifestyle. As well as almost 200 pages from Tambosso’s facebook account, video surveillance was also submitted to the court to disprove her claim.
The defence gathered all manner of social activity as evidence. Partying, days out with friends, having a pop at karaoke; her facebook page was a trail of contradiction.
And that’s how the judge eventually ruled. There was so little consistency with the conditions she claimed the car accidents had instigated that the judge only awarded $36,000.
The case has gone to appeal. But as social becomes an ever greater part of our lives, we must consider the image our public self portrays. The cost of not doing so, as Tombasso discovered, could be very high.