Legal warning for South Africans who use WhatsApp, Facebook, and TikTok

Legal experts warned that social media posts, messages, and even fitness app data are increasingly being used as admissible evidence in South African courts, which can destroy personal injury claims.

DSC Attorneys partner Kirstie Haslam said courts in South Africa and around the world are increasingly relying on social media content.

Everything from Facebook posts and Instagram stories to WhatsApp voice notes and fitness app data is now being regarded as admissible evidence in personal injury cases.

“What many claimants don’t realise is that even innocent-looking posts can be used to undermine credibility, contradict medical claims, or trigger allegations of fraud,” Haslam said.

In one high-profile overseas case, a man who claimed a workplace accident left him permanently disabled saw his case unravel when his social media activity told a different story.

The court ordered that his profiles be handed over as evidence, a move that is becoming increasingly common.

Haslam explained that anyone who is pursuing a personal injury claim should assume their digital life is under scrutiny.

“People underestimate how closely their online activity is monitored once a claim is lodged. What you post and what others post about you can have serious legal consequences,” she said.

According to Haslam, photographs, comments and videos shared on social media are all admissible as evidence in court.

“Once a claim is instituted, insurers and defence attorneys often deploy dedicated teams to scour the internet for material that supports or contradicts a claimant’s version of events,” she said.

This does not only apply to civil matters. Social media investigations may arise in both civil and criminal cases. Platforms such as Facebook, Instagram, WhatsApp, and Strava have all been used as evidentiary sources.

“If someone exaggerates or misrepresents the physical, emotional or psychological impact of an injury online, it can seriously compromise their case,” she said.

In extreme circumstances, Haslam said that these misrepresentations can even lead to criminal charges such as fraud.

Social media sinks personal injury claims

Claimants often assume they’re safe if they simply stop posting themselves. However, Haslam warned that this is a dangerous assumption.

“Posts made by friends and family are fair game. Photographs you’re tagged in, comments made about you, or videos showing your activities can all be submitted as evidence,” she said.

Even attempts to delete content or deactivate accounts can backfire. “Courts may view this as an attempt to conceal evidence, which can further damage credibility,” she said.

Haslam explained that there are three ways social media can sink a personal injury claim. First, it can undermine the claimant’s credibility.

If they allege severe limitations on their lifestyle, but their social media suggests otherwise – like frequent travel, parties, or sporting activity – defence lawyers will use that inconsistency to cast doubt on the entire claim.

It can also sink a claim by directly contradicting alleged injuries. Photos, videos, text posts, location data and fitness tracking apps can all be used to challenge the extent or existence of an injury.

In one case, cycling data from a fitness app contradicted a claimant’s assertion that a knee injury left him unable to ride.

Finally, Haslam stated that accidental admissions of fault on social media can also lead to a personal injury case not succeeding.

Off-hand comments, jokes or emotional posts can amount to admissions of partial or full liability. Even if a claim is valid, discussing the incident publicly can have unintended and damaging consequences.

“South African courts have repeatedly ruled that social media content may be admitted as evidence, provided it meets legal requirements such as relevance, authenticity and originality,” Haslam said.

“Ultimately, it’s up to the court to decide what weight that evidence carries, but the idea that online content is off-limits is simply wrong.”

She explained that local cases involving racist remarks, defamatory statements and even WhatsApp voice notes have reinforced the principle that digital communications can and will be used in court.

How to avoid the social media trap

According to Haslam, even unlawfully obtained social media content may still be ruled admissible. “In one case, defamatory Facebook statements were admitted despite having been obtained through hacking,” she said.

“Although the court acknowledged a violation of privacy, the evidence was allowed because it was relevant and probative.”

The takeaway, she stressed, is that privacy breaches don’t automatically disqualify evidence if it is considered crucial to establishing the truth.

Internationally, courts have consistently expanded access to social media evidence in personal injury cases.

Landmark rulings in the United States, the United Kingdom and Europe have confirmed that privacy settings do not necessarily shield relevant content from disclosure.

“As digital footprints grow, so does their evidentiary value,” Haslam said. “This trend is not going away, it’s accelerating.”

Haslam advised anyone who has instituted a personal injury claim or is awaiting settlement to take the following precautions immediately –

• Stop posting comments, photos or videos on social media
• Never post about an accident, injury or recovery
• Increase privacy settings across all devices and platforms
• Disable search visibility where possible
• Be cautious of new online ‘friends’, they may be investigators
• Remove personal photographs from public platforms
• Do not delete devices or data, as this may be viewed as destruction of evidence
• Avoid online forums or chat groups discussing the court case

The bottom line, Haslam stressed, is that social media can undo years of careful legal work in a matter of seconds.

“If you’re pursuing a personal injury claim, the safest approach is to treat every post as if it could be read aloud in court because one day, it might be,” she said.