In my experience practicing within the area, it is not uncommon for a party to a proceedings to “stick their foot in it”, so to speak, when it comes to the publication of information and details relating to a family law matter that should simply not be in the public eye – be it simply distasteful, or worse; prejudicial to a party or hampering the judicial process.
As a young yet experienced practitioner, I, along with most of my similarly aged and skilled professional network, have grown up with social media forming a large part of our avenues of communication – and the studies say that we are not alone. According to the Australian Bureau of Statistics (“ABS” as it is commonly referred to) as of January 2018, approximately 60% of Australians are active users on Facebook – and 50% of Australians log in at least once a day. And that’s just Facebook! There are also platforms like Instagram, LinkedIn, Snapchat, Pinterest, Twitter. The list goes on!
The demographics signing in is the real interesting part – albeit predicable! The largest demographic to access the site are the 25-39-year old’s, with a whopping 6,100,000 active users, followed by the 40-55 year old’s and then the 15-25’s. When we compare this with data pertaining to the demographics accessing the family courts, it is no wonder that the use of social media is having an impact.
Quoting the honourable Judge Neville:
“[social media] is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) ‘evidence’ to be used in litigation”.
And as a currently practicing family lawyer, let me tell you, his honour hit the nail on the head!
Problems with social media and family law proceedings
So, if you take in on my experience, and take into account the data, we can see that a large amount of the population uses social media, and that this may have some kind of impact on court proceedings. Let’s connect the dots on why this is not necessarily a great thing…
Now let me get a little bit nerdy in here… Section 121 of the family law Act 1975 (Cth), one of the main overarching instruments that we family lawyers use to guide us through a family law matter says the following: -
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
In layman’s terms: don’t identify by any means WHATSOEVER a person involved in a Family Court matter. Ever. Don’t do it. Trust me, I’m a laywer (that’s how the saying goes, right?!).
People often come into my office and upon me mentioning that my advice is to DEFINITELY NOT post anything whatsoever about their ex or their situation on social media, they advise that they have made a post in relation to their issues, but they haven’t “mentioned any names”.
Let me be clear on this, it does not matter. If a reasonable person could identify the person who is the subject of the post, you are up the creek. It is best to post nothing lest you shoot yourself in the foot.
It is also common for a disgruntled party to a dispute to get online to publish “matters of principle”, share “their side of the story” or even in some cases to defame the other party or offer some “harsh truths”. Again, from a family lawyers perspective, this is not ideal. Along with opening up a possible claim for defamation, anything said in this regard may also be taken into account in the courtroom and be in direct violation of the Act.
The bottom line is, unless you would like to risk spending one year in jail, and your posts being made public information in your court matter, don’t post anything in relation to a family law matter online.
Not only are there legal ramifications of social media usage pertaining to family law proceedings, parties to disputes and those involved should understand that the content of posts can also be used in Family Court proceedings. Best to put your best foot forward, keep all social media usage clean of family law disputes, and save yourself the embarrassment of a post from 2015 being dug up and coming back to bite you!
Another issue that I regularly encounter in practice is the pseudo-legal advice offered in the public Facebook domain from family and friends. Facebook users be warned, the only person you should trust to give you legal advice is… wait for it… a lawyer. From the perspective of a non-lawyer I understand that it is comical to hear a lawyer say that the only person you can trust in relation to legal advice is a lawyer. Surely we are trying to rack up fees for our corporate buddies? No. As a young, ethical and experienced lawyer, let me tell you, the pains that come from acting on non-qualified advice is not something I wish for any party to a proceeding to be privy to.
Often, a legal problem will have a simple solution available on google… that is, amongst two-thousand other “solutions” that are near impossible to discern from the correct solution. Your legal professional will be able to advise you correctly in the FIRST instance and save the frantic pandemonium that often occurs when a party is offered incorrect advice, acts on it, and comes to a lawyer at five minutes to midnight expecting a magic solution to what was once a simple problem. I could go on; however, I am sure my point has come across!
Benefits of social media and family law proceedings
It isn’t all doom and gloom where social media and the family courts are concerned. In some instances, social media can pep-up and compliment the law.
For example, in a case where a party is flying under the radar in order to avoid service of court documents, social media can be a handy way of serving same (though should not be relied upon as an ordinary and usual form of service as service in this way requires leave of the court). In several cases, service by way of social media messages have been seen to be going to “extraordinary” lengths in order to serve documents and successful transmission of the messages after all other forms of service has failed may just get a matter across the line in terms of service.
As well as in instances of substituted service, there are some benefits to the connection between the law and social media when matters are published which are in the public interest.
For example, publication of new laws, notification of the public of changes to the law that may affect them, discussion surrounding legal issues that may lead to formal reviews and enquiries and also, you being linked to articles such as this one!
There are several benefits to the use of social media with relation to legal matters however the distinction is that posts of this kind are usually of a general nature or are of matters that are ordinarily in the public interest and open for discussion.
So what are the takeaway points here?
- Publication of ANY details in relation to family law matters, even if they directly concern the publisher, should never occur.
- In particular, matters concerning family law proceedings that may benefit or prejudice a family law matter should be saved for the lawyers, not for a post on Facebook.
- Trust your lawyer for qualified legal advice that is correct in the first instance to avoid later pain. Your friends may have an answer, but is it correct?
- Social media can be useful in order to educate the public in relation to general legal issues that would not otherwise be publicised or widely discussed.
- Social media may be useful in some limited circumstances where the court grants leave for a party to do so, however, this will never involve publications that contravene the act, in particular Section 121.
As a young practitioner witnessing immense change due to being on the cusp of technological changes in the legal sphere, I am very interested to see how the law evolves as the individual’s online presence merges more so with their personalities and lives.
I foresee that the law will evolve not to protect and exclude, but to embrace and progress with the ever-growing use of social media as new features and developments occur.
Will my predictions be correct?