The extent to which social media is being used in evidence in family cases is nothing short of startling. Research in 2012 suggested that social media was being cited in as many as one in three petitions for divorce, with postings on the likes of Facebook used to demonstrate unreasonable behaviour. Likewise, use of social media is now commonly used to support applications for Non Molestation Orders and even to found contempt proceedings where a party unwisely posts details of the case on Facebook or Twitter. Extreme examples include the wholesale uploading of links to court orders, Cafcass reports and even, on one occasion, a confidential psychological report.
The ease in which a spiteful, derogatory, flirtatious or suggestive posting can be accessed by a spouse or partner, or, increasingly, their solicitors, belies the fleeting nature of such postings. Social media may be a place considered wrongly safe to vent into the ether, but posts or tweets are not easy permanently to erase. Privacy settings do not necessarily assist, as a posting on a “private” Facebook profile can still be screenshot and passed on to the aggrieved partner.
To what extent is such evidence admissible? In reality, courts are slow to disregard such evidence in founding grounds for divorce, Non Molestation Orders, or as evidence of parental alienation. It is increasingly usual to find annexed to witness statements not just text messages, but Facebook posts, tweets, or, in one memorable case, “fictional” stories of the travails of a party fighting through the family courts, which bore more than simply striking resemblances to the facts of the case that the author was going through. Likewise, photographs from social media of, for example, the Father posing with what appears to be a firearm with his face clearly visible is not likely to endear that party to the court.
The message to take from all of this is twofold. Firstly, act defensively. When acting for a client in family proceedings, impress upon them the need to steer clear of any postings that are derogatory, offensive, harassing or that discuss details of the case. It is usually sensible in any event to do a quick Google search to ensure that the client has not set up a website excoriating their partner’s failings and linking to various court documents, and to check whether the client uses social media sites. Secondly, and conversely, it is normally worth checking with the client to see if their partner uses social media, and to see what information may be publicly available. This may turn up, for example, tweets bragging of the conversion of matrimonial assets into “untraceable” bitcoins. Likewise, the use of threatening or offensive language, even if not directed at the client, may found grounds, or provide supporting evidence, for a Non Molestation Order.
All of the examples used in this article are from the author’s direct experience and demonstrate the power of harnessing social media. The growth of the same has been cited as a stalker’s playground; for information gathering to bolster a client’s case it is an invaluable resource.