Social Media Mistakes Defendants Should Avoid

Consider this scenario: You’ve just been served with a lawsuit accusing you, a small business owner, of a major breach of duty that led to the personal injury of one of your patrons. For many defendants, their first impulse would be to broadcast how wrong the plaintiff is on social media. That, however, would be a mistake. Facebook, X, Instagram, and TikTok posts and videos routinely become evidence in litigation, and it's not hard for defendants to inadvertently sabotage their defenses through ill-advised social media use. If you’re facing a lawsuit — or even just feeling pressure to address allegations of wrongdoing — a North Carolina personal injury defense attorney can help you mitigate the risk of missteps on social media. 

1. Posting About the Incident or the Injured Party 

One of the most common social media mistakes defendants make is posting about the accident or the injured party, especially in the heat of the moment. What might seem like a harmless joke or an attempt to set the record straight to you can be interpreted very differently — such as an admission of wrongdoing — by someone else. Even if the post in question is not a “smoking gun,” plaintiffs often use defendants’ angry social media posts as evidence of callousness or lack of remorse, upon which juries look unfavorably. 

2. Posting Marketing Content That Could Undermine Your Defenses

Even if you don’t post about the accident or the injured party directly, resist the urge to make marketing posts that refer to the accident indirectly. For example, if you’re facing a products liability lawsuit, avoid posting statements like “we always put safety first” or “our products undergo the most rigorous safety tests.” The plaintiff could argue that such statements establish that you knew the applicable standard of care or had prior knowledge of safety risks. 

3. Deleting or Editing Posts After an Incident

Let’s say that there is a photo or video of the incident giving rise to the lawsuit on one of your social media accounts. You’d probably want to delete it, right? Of course, you would, but you should nonetheless resist that urge. Parties to litigation have a duty to preserve evidence when they reasonably anticipate litigation, and destroying said evidence is known as spoliation. Parties who engage in spoliation of evidence may face sanctions, including fines, preclusion of evidence, and even default judgment. 

4. Assuming That Privacy Settings Prevent Discovery 

Setting your social media accounts to private does not necessarily prevent their contents from being discovered. Generally, North Carolina rules of discovery allow litigants to access any non-privileged information that is relevant to a claim or defense in their case, including social media posts on private accounts. And even if a request for a private social media post does not come through the formal discovery process, nothing can stop a third party who has access to it (e.g., a friend or follower who can see your private posts) from screenshotting and sharing it with the plaintiff. 

5. Allowing Employees to Post Freely About the Incident

One of the best tools available to a defendant is a tightly controlled and methodically presented narrative. Social media posts by employees who witnessed the accident, were involved in it, or formed strong opinions after it occurred can undermine the effectiveness of that narrative. Under some circumstances, employee statements may even be attributed to the company. As such, defendants should instruct employees not to post or comment about the incident giving rise to the litigation. 

Post Safely With Help From a North Carolina Personal Injury Defense Attorney

If you’re facing litigation — whether you have already been sued or think you might be — your social media usage during this time is critical. Avoid potentially catastrophic mistakes by seeking the advice of a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby. Call 252-638-6666 or use our online contact form.