Admissibility and Disclosure of Social Media Information

Facebook. Twitter. Instagram. Social media platforms have become useful sources for carrier investigation and surveillance of injured workers. Claimants utilize these social media platforms on a daily basis, posting a variety of photographs and videos. Often these photographs and videos contradict claimants’ allegations that they are “totally disabled” from performing any type of activity, allowing carriers and employers to raise fraud under Workers’ Compensation Law Section 114(a).

Generally, in order to raise fraud under WCL Section 114(a), the carrier and employer must disclose covertly obtained investigative material before Section 114(a) is raised and before claimant testifies. The rationale behind this procedural mandate is to ensure that a claimant is made aware of the existence of potentially incriminating material that he or she may not have known was available for the carrier or employer to obtain. This procedural mandate is not required for “investigative material” obtained from social media platforms. This is because the Board has found that these videos and photos are considered “public.”

“Case law does not foreclose the use of Facebook-derived information” (Matter of Aeropostale, 2012 NY Wrk Comp G0410425). The Board has previously held that evidence from a social medium such as Facebook is not a part of any surveillance activities on a carrier’s part. “Instead, the nature of Facebook is that communication of information is initiated by the user, in this instance, the claimant.”. The purpose of Facebook is to broadcast to a wide network of contacts information that the individual wants made public. The Board has found that the claimant cannot claim that this very public information is for everyone to see, except the carrier. The crux of admissibility of social media information is whether that information was “public” at the time it was obtained.

Therefore, the following should be admissible without prior disclosure:

  1. If an investigator’s report included information publically available at the time it was obtained, the report may be admissible with respect to that information even without prior disclosure as to the existence of this report.
  2. If a social media post was publicly available at the time it was obtained, that post is still admissible even after a claimant makes that post “private.”
  3. If a social media post was publicly available at the time it was obtained, claimant’s subsequent actions to alter, change, and/or remove this post should not impact admissibility of this information.

As a matter of best practices, any type of social media information, whether obtained covertly or publicly, should be disclosed prior to raising Section 114(a) and prior to claimant’s testimony to avoid any potential preclusion.

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