Beware Legal Implications of Social Media

Posted 06-10-2020
Written by admin 101

Posting on social media during or after a family law court case can be fraught with problems, as the RMB Lawyers Family and Relationships Law division explains.

A family law client posted the following on Facebook:

“The kids and I are finally free from that pedo bastard.  LOL.
You should have heard the Judge tear strips off him.
I get to keep the house and all of his super.  He gets nothing.
Truly, there is justice in the world.”

After a four year court battle for custody, the above post might feel like a vindicational celebration for all the hardship they have been through. However, clients need to be aware of the legal repercussions of posting such declarations on Facebook, Twitter or other public social media.

The above Facebook posting would run foul of both the Family Law Act and defamation legislation.

Section 121 of the Family Law Act (Cth) 1975 states that:

“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 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)          Is a witness in the proceedings;

commits an offence punishable upon conviction by imprisonment for a period not exceeding one year.”

One needs to be mindful that if one infringes this section of the Act it is punishable by up to one year in prison.  Further, it is likely to be harmful to your case if the Court becomes aware at any stage that you have been making case-related posts on social media.

A leading case in this matter is that of Lackey & Mae [2013] FMCAfam 284.  The Court found that the posts made by the father and his friends denigrated the Court, the Independent Children’s Lawyer and the litigious process (including investigations undertaken by the Department of Children’s Services and the police) and further contained detail and commentary that only could have been alluded to by the father and friends if they had taken that information directly from affidavits that had been recently filed with the Court.

As in this case, such actions by a party will be examined by the Judge to assess the impact on the best interests of the children. In Lackey & Mae the Judge was highly critical of the father’s actions and made Orders that the children should be protected from such actions of the father. This impacted the amount of time that the father could have with the children.

Any such exposure on social media that is deleterious to the children’s best interests is likely to be viewed dimly by any Judge in Family Court proceedings and may certainly call into question the character and fitness of a parent with respect to them exposing the child to the unwarranted or damaging material upon social media. It is further highly likely that such behaviour will be reported to the relevant Department of Children’s Services etc.  The Court may also issue an injunction prohibiting a person from further publishing information on social media.

Such publication upon Facebook may also run foul of the Model Defamation Amendment Provisions 2020.  Under these new provisions in order for defamation to be proved, the victim (who can also be a company or a corporate entity) has to demonstrate that they suffered serious harm to their reputation or image and/or has suffered financial loss. There is a limitation date to commence action for the same that runs from three years from the date of publication of the defamatory material. The serious harm component of the legislation shall endeavour to exclude trivial claims.

By way of example, let us just say that in the Facebook example provided above, the father was a child care worker and he was dismissed form his position at the child care centre. A great number of parents had withdrawn their children form the child care centre because they had seen this post and assumed that the father was a paedophile. 

The child care centre then dismissed the father claiming that his services were no longer required as they had to reduce staff numbers because they had a lower number of enrolments of children. However, the father was convinced that the reason why he was dismissed was because the child care centre and the parents of the children enrolled in the child care centre believed him to be a paedophile as a result of the Facebook post of his former partner.

Although the Model Defamation Amendment Provisions are yet to be tested fully by case law, it is entirely possible that the father may have grounds to take legal action against his former partner due to a financial loss suffered as a result of the cessation of his employment by the child care centre. Naturally, he would have to be able to establish a causal link between his dismissal and the Facebook posting.

Although it is generally possible to show that a statement is not defamatory if it can be established that the statement is true or an expression of honest opinion, these defences are often hard to actually prove. In the event that you do not have the evidence to prove that your statement about the other person is true, it is best to err on the side of caution and not publish anything at all.

With likely prison sentences or hefty fines, a quick tweet may end up resulting in quite a birdsong that you wish you had never commenced to sing.

Thanks to Jordan Bush (Goulburn Office) for sharing his knowledge on Defamation Law

Contact our office to arrange a free consultation if you have a similar issue or concern relating to social media defamation or family law. You can contact us by by phone or our 'Ask a Question' tool on our website.