Social Media and Family Law

Sydney based family lawyer Hayder Shkara writes this week on the dangers of social media and family law. 

It's a problem we hear about every week from a distressed parent somewhere who, in the midst of a family law case, has unknowingly fallen victim to the minefield that is social media.  

Hayder writes:

"It is now becoming standard practice for social media posts to be used as evidence in family law cases along, with text messages and emails.

According to a recent study, evidence from social media was accepted in up to 82% of Australian family law cases.

Despite this, many parents seem oblivious to how their Facebook, Instagram and even online dating profiles may be used against them in the family law courts.

One judge recently commented:

‘It never ceases to astound me how many litigants in [the Family Court of Australia] publish material through social media such as Facebook without consideration as to how poorly it might reflect upon them if adduced in evidence ’."

We agree with Hayder. 

A week doesn't go by without one of our social media followers or a parent that we're supporting asking us why we do not run a dads / mums discussion group on Facebook, WhatsApp, Slack etc. The reason is always the same; because our aim is to help them have the best possible relationship with their kids, not to increase the risk of that being prevented. Thats the reality of the risk with using groups within most major social media platforms. 

So, what specifically are the risks. There are many and they are often complex but its wise to look at the more common risks:

1. Misuse of your content: If someone steals something you have posted (read 'screen shot'), the crime is technically committed against the content owner. The question in practical terms is who is that content owner when 'you' post to 'someone else's' social media platform - is it you or the platform? Technically, it's you but terms and conditions on most platforms muddy the waters to the extent thats its hard if not impossible for all practical purposes for you to enforce your rights in a court. Here, let's read family court. A key consideration is that you're going to face a hard time trying to get a foreign social media platform to support that 'your' postings, no matter how private a group they were 'stolen' from, should not be used by a third party in your case against you, by another one of their users.
2. Ever changing privacy: Major social media is continually changing privacy rules meaning that what was once private, might no longer be so. Experience suggests that there's rarely any notice when this occurs - you are left to find out the hard way when your postings are thrown back at you by someone else that believes it is a valid reason that you should no longer have access to your kids. 
3. Security loopholes: Following on from the last point, with continual changes come a continual string of new security loopholes and endless freebie sites that will help an angry ex-partner take a detailed look at what you are saying in those 'private' groups. This is more common than the majority of users will realise. Until quite recently, one free service online could substantially compromise private  group access restrictions on the biggest social media platform; a loophole thankfully, since closed. For how long, is the question. The game of restricting and breaking access to private or secret groups is a cyclic one. 
4. Nearly impossible to hide your identity: With few exceptions, social media platforms insist that you use a name. Sometimes you can get away with a false name but its typically against the terms and conditions of your service (the breaking of which opens up another legal problem for you) and even with a false name, it is sometimes possible to track an individual based on who they are connected to, what they look at or like, where they check in, their mobile number or email logged against that account etc. Even seemingly innocuous images (including profile pics and cover backgrounds) posted, open up security flaws - ranging from what is in them to their file names and meta data. Pretending to be someone else is, for the most part, very hard to do. A determined stalker is likely to find it easier than ever to locate low cost or free software, expertise for rent and/or lawyers that can access  information that you are posting 'privately'. 
5. Your information is up for sale: Big social media sell user info. There's a rule in this industry - you either pay for your dinner or 'you are the dinner'. Right now, the Australia government is suing Facebook for up to AU$529billion (you read that right) for sharing 300,000 users private data with a third party. Many third party apps can potentially access your data from when you provided them permission in those pesky terms and conditions that no one generally bothers to read. It's a good idea to stop playing those free games and quiz's through your social media platform. Related to this is those that access the social media groups quietly, lurking in the background and selling on the information gleaned to interested third parties.
6. Who's running your social media group and do they understand the risks: Do you know and trust the organisers of your social media based group to have vetted the others in the group with you? Do they only allow access to people they reasonably know or have good reason to believe are genuine, to see and not inappropriately share your posts displaying your identity (see point 4)? We know from recent legal cases in Australia and from our own efforts to vet those accessing support systems that there is no end of attempt by those with ill intent to access the content of others . Its not just angry ex-partners either, its also lawyers looking for new clients and the low down on their clients ex partner - we've seen it all. To this end it's not only where you choose to share but also with whom that makes the difference. Bottom line, if it's easy for you to join or get access to without any information checks, it is also easy for your stalker.  

The simple fact is, no social media platform is 100% safe and no organisation or individual can provide you a 100% guarantee of security but, some platforms and some organisations are more secure and more caring of your information than are others. It's a question of degree and it needs to be balanced against the importance of what it is that you are risking.

Platforms such as MeWe and Diaspora offer significantly enhanced security and control over your personal data if you're looking for a Facebook alternative. There are other platforms depending on your preferences and you'll find some listed here. 

Regardless of platform, it also matters that the group or support service that you might be using is credible and has your (not their) best interests at heart. If they are using one of the more risky platforms, is that by conscious decision ignoring the risk to you, or because they are ignorant of it? Either way, it may be time to question your use of it.  

As an organisation, we know how how much time we invest in keeping our users safe through vetting, moderation and other security protocols that, for obvious reasons we do not share. We are also aware how rare that is elsewhere because of the daily horror stories that are shared with us and that we see in court. 

Hayder goes on to say:

"In Lackey and Mae, the father involved in the case, along with his family, posted on Facebook, characterising the mother of his children as a ‘liar, manipulator, dad hater, child neglecter, child abuser and stalker’ on Facebook. He also published her personal details and photograph and further referred to her as a ‘cheating, lying wh*rebag’.

The judge overseeing the case referred to the father using social media ‘as a weapon’, and Marman FM noted that this use of social media is ‘a regrettable common practice now’."

Ignorance of the dangers of using social media based support groups in family law matters is worrying, especially given the stakes for individuals and their children.  

For a safer place to get and to give help online as a separating parent, we'd suggest our Virtual Verandah. Register free at www.parentsbeyondbreakup.com/vv.