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Netiquette in Aladdin's cave

Feature Articles

Cite as: March 2014 88 (03) LIJ, p.42

Social media activity can affect proceedings. Practitioners need to discuss it at their initial client conference as a step in protecting their client’s interests. 

By Evelyn Young and Louise Fairbairn

“An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of social media.”1

Historically, the development of jurisprudence is gradual and tradition-based. It is therefore not surprising that the legal landscape is struggling to adapt to the ever-developing and fast world of social media. This is particularly evident in family law, where families are rapidly changing the way they communicate and interact with each other, the effect of which can create a headache for lawyers and litigants alike. To help lawyers navigate the minefield that is the interaction between social media and the law, this article explores whether social media content is discoverable, the consequences of removing social media content, and the application of s121 of the Family Law Act 1975 (Cth) to social media.

Disclosure of content

The Family Law Rules 2004 (Cth) provide that the duty of disclosure applies to all documents in the possession or control of a party that are relevant to an issue in the case.2 This raises the question – is content on social media discoverable?

The simple answer to this is yes, subject to the normal over-riding requirement of relevance. The Family Law Act 1975 (Cth) (the Act) and Family Law Rules 2004 (Cth) are silent as to the meaning of a “document”, but the definition of a “document” in s2B of the Acts Interpretation Act 1901 (Cth) is extremely broad. It defines a document as “any record of information” including:

  • Anything on which there is writing;
  • Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;
  • Anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or
  • A map, plan, drawing or photograph.

Content on social media clearly falls within this definition. It makes little difference where or how the information is stored or created; rather it is the content of the information that determines discovery. Whether a person’s social media page is discoverable will turn on the relevance of the page to the proceedings on foot.

Lawyers should revise their discovery request precedent to include a request for social media content. A handy new feature on Facebook is the “Activity Log”, a page which lists a person’s activity. As a starting point, it may be a good practice to start asking clients and the other party for their Activity Logs.

Destruction of evidence

The pages of Austlii are littered with family law matters where one party’s bad behaviour on Facebook or other social media has been annexed to an affidavit and admitted into evidence. To quote Federal Magistrate (now Judge) Warwick 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”. 3

Lawyers may be tempted to protect clients from themselves, and, in addition to advising their clients to beware of what they say on social media, to delete any offensive content. However, in doing the latter, lawyers may be encouraging the destruction of evidence, a criminal offence pursuant to s254 of the Crimes Act 1958 (Vic).

One US lawyer learned this lesson the hard way. In the sad case of Isaiah Lester v Allied Concrete Company and William Donald Sprouse,4 Isaiah Lester was the applicant in a wrongful death suit against Sprouse, a truck driver whose truck rolled and killed Lester’s 25-year-old wife. During proceedings Lester received a discovery request for “screen print copies on the day this request is signed of all pages from Isaiah Lester’s Facebook page”. Attached to the discovery request was a photograph from Lester’s Facebook page of him wearing a t-shirt emblazoned with “I [heart] hot moms” and with a beer in hand. Lester’s lawyer told Lester to “clean up” his Facebook page because “we don’t want blowups of this stuff at trial”. Lester heeded this advice, and went one step further by deactivating his Facebook account. Accordingly, Lester’s lawyer responded to the discovery request by saying that there was no Facebook page in existence to disclose. In doing so, Lester’s lawyer was found to have engaged in an “extensive pattern of deceptive and obstructionist conduct” for spoliation (destruction) of evidence, and was ordered to pay a US$542,000 sanction.

Obviously this is an extreme example, and was quite clearly a breach of the US Federal Rules of Civil Procedure.5 But what would have been the outcome in Australia if the social media content had been removed before the start of litigation? British American Tobacco Australia Services Limited v McCabe6 makes it clear that it may not be a defence that at the time of destruction of documents there was no litigation on foot if it can be established that the destruction of documents amounted to an attempt to pervert the course of justice. Thus, lawyers are urged to take extreme care when advising their clients as to their social media use, and should not be counselling clients to clean up their social media pages where it is likely that legal proceedings may be started and those pages may be relevant.

Redefining “publishing”

When will social media use amount to a breach of s121 of the Family Law Act 1975 (Cth)?

There are restrictions on the ability to publish details of cases in courts exercising jurisdiction under the Act. Section 121 of the Act prohibits the publication of any account of any proceedings, or of any part of any proceedings, which may identify a party to family law proceedings, a witness in the proceedings or any other person concerned with the proceedings.7 Publication may include publication in a newspaper or periodical, on radio or television, or by any electronic means, or otherwise in the public domain.8 The requirements of the term “publication” are seemingly very broad. Anyone who “disseminates to the public or to a section of the public by any means” any information identifying parties involved in family law proceedings may be caught.9

Until recently most cases involving s121 were concerned with newspaper articles, radio, television or content on websites and often involved journalists or other media representatives. One prominent case that has crossed the divide to social media involved children who were subject to family law proceedings (otherwise known as the “Italian girls” case). This highly emotional case gained significant attention from both traditional media and social media after the four children and their great-grandmother remained in Australia in defiance of a Family Court order which required the children to return to Italy. A Facebook page was created, allegedly by the four children, containing photographs and identifying details of the children and other family members, references to the Court proceedings and copies of correspondence from the father’s lawyers. However in this case it was traditional media that came under fire for breaching s121. In May 2012 photographs were published on the front page of The Courier-Mail of the four girls, which prompted a complaint from the Chief Justice of the Family Court. Queensland Newspapers Pty Ltd pleaded guilty to four breaches of s121 of the Act in relation to four articles that appeared in The Courier-Mail. Notably, however, no similar proceedings were issued against Channel 9, which also identified the children and the adults involved in the 60 Minutes television program. What was the difference? Channel 9 made no reference to the Family Court proceedings, whereas The Courier-Mail did so prolifically.

With the increasing use and reliance on social media, individuals may fall foul of s121 while not being aware that they are “publishing” anything at all. Increased social media use has seen the unfortunate trend of people posting comments that they would not normally say directly to the person they are referring to, under the guise of perceived anonymity, and often with complete lack of awareness of how many people can view that comment or post. It is clear that comments or postings on social media which refer to family law proceedings and which identify parties to a family law proceeding constitute “publishing” pursuant to s121 because they fall into the category of broadcasting via “other electronic means”. Recent cases confirm this, such as Darcy & Cameroon (No 3),10 Sardella & Makovich,11 Lackey & Mae12 and Sebastian & Sebastian.13 Despite the platform, context or intention behind such statements, they can be found to have breached s121 and leave the statement maker open to being charged with an indictable offence. Breaches are handled by the Commonwealth and can carry a sentence of up to one year in prison.

In Lackey & Mae, Federal Magistrate (now Judge) Neville ordered the marshal of the court to investigate postings a father and his family made on Facebook in relation to a parenting dispute. The father allegedly made several derogatory and critical comments online about the Family Court system, the judge, the independent children’s lawyer, the lawyers involved and the expert witness. He also revealed confidential information about the case. His Honour requested that the marshal monitor the father’s Facebook for the next two years for any similar postings by the father, his family and their “cyber-friends”.

What should litigants do?

The most important thing for litigants and others to consider when using social media in connection with a family law matter is that their thoughts or opinions, if expressed online, are not private, and could end up before a judge annexed to an affidavit. In addition, s121 lists non-exclusive examples of factors that may contribute to the identification of a party to family law proceedings. These include the style of dress, occupation, recreational interests or political beliefs of the party. It is important that lawyers advise their clients of the breach of s121, as it is unlikely that the average litigant posting on social media about the recreational interests of a party in connection with family law proceedings would realise that they were potentially guilty of an indictable offence if such postings could also be characterised as an account of proceedings.

In Swinton & Barnstable14 Justice Judith Ryan allowed the father to maintain a blog detailing his time with the child so long as it was “password protected and access was limited to trusted friends and family” to protect the child’s safety and anonymity.15 This suggests that if a party only has a limited number of Facebook friends or Twitter followers and their settings are set to private, they arguably may fall outside the scope of s121. It should, however, be noted that this case was not ultimately determined with reference to s121, so the ability to draw such an inference may be limited. The Act does not impose a minimum threshold as to what comprises “a section for the public” for the purposes of s121(1) and Facebook posts or tweets, even to a select group, could still breach s121 if they contain any account of the proceedings or part of the proceedings which identify a party, a witness or anyone associated with those proceedings.

It is important to be aware that privacy settings will not necessarily protect a party. Anything posted on social media may ultimately be used as evidence. Although content can be deleted, the digital footprint of that content can rarely be completely removed. Even after being deleted, content may still be available in backups, caches and search indexes. Clients need to be aware that “cleaning up” their Facebook page or Twitter account will not always protect them and may cause further problems, as discussed above. Prevention is far better than damage control.

The best weapon against unwanted and unintended s121 breaches is awareness. As legal practitioners, we need to ensure we are providing our clients with advice about s121 and the impact social media activity can have on their proceedings. This can and should be a conversation that practitioners have at their initial client conference and could be an important step in protecting their client’s interests.

Tips for practitioners

Although you should exercise extreme caution before telling a client to “clean up” their Facebook page, it is good practice to inform clients that they should set their social media pages to private, and not post anything they wouldn’t want their grandmother/employer/the judge to see.

Amend your precedent for disclosure requests to include the other party’s social media activity logs.

Tips for litigants

  • Assume everything you post is public, including posts on other people’s social media pages.
  • Do not post while angry, sad, intoxicated or in a highly emotional state.
  • Monitor the photos you put on Facebook.
  • Vent to your friends in person or on the phone, not your Facebook friends. You never know who you may have forgotten to delete.
  • Regularly go through your Facebook friends and delete those with whom you are no longer acquainted.
  • Monitor your privacy settings, but do not rely on them always protecting you. It is better not to post anything inappropriate in the first place.
  • Do not post anything on social media regarding your family law matter whilst your case is being heard.

EVELYN YOUNG is a solicitor at Meyer Partners Family Lawyers and has practised exclusively in family law since 2010. LOUISE FAIRBAIRN is a solicitor at Forte Family Lawyers. She practises exclusively in family law and offers a commercial and taxation perspective to family law disputes.

1. [2013] FMCAfam 284, 9.

2. Reg 13.07 of the Family Law Rules 2004 (Cth).

3. Note 1 above.

4. No. CL 08-150 (Va. Cir. Ct. Oct 21 2011).

5. Rule 37.

6. [2002] VSCA 197.

7. Section 121 Family Law Act 1975.

8. Note 7 above.

9. Note 7 above.

10. 2010 FamCA 347.

11. [2011] FMCAfam 183.

12. [2013] FMCAfam 284.

13. (No 3) [2012] FamCA 1058.

14. [2011] FamCA 548.

15. Note 14 above, p128.


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