By Gianna Huesch
How much do you share online? Discretion on social media is a big issue in family law these days, with spouses regularly using postings as evidence against the other spouse in parenting or financial proceedings. If you are going through an acrimonious divorce, anything you posted in happier times has the potential to come back to haunt you. So is there any way you can prevent your social media from being used as ammunition against you in a divorce?
These days, more and more people are attempting to protect themselves by including provisions in Binding Financial Agreements in the form of “lifestyle clauses” or “social media clauses” which attempt to specifically address what information can be shared on social media by either spouse.
A social media clause is intended to specify that each spouse agrees that certain information is not to be disseminated without prior written consent. This information is deemed to be “Protected Information” and can include any details about each spouse’s personal life, business and financial affairs, legal circumstances, physical or mental health and sexual behaviour. Such clauses can aim to prohibit a spouse from posting confidential information in the form of video, photos, SMS, emails, Tweets, Facebook posts, blogs or any other form of electronic information without the other spouse’s prior consent. They can also be drafted to limit a parent’s ‘sharenting’ about the kids.
Enforceability, however, is still a grey area. The law in relation to Australian BFAs currently only specifies that such agreements are about financial matters, for example, the division of property or assets, and spousal maintenance. Therefore, it is uncertain whether the courts are able to enforce social media clauses and it would depend on a court testing this in a particular case.
In some cases, BFA clauses have been drafted to protect a person’s intellectual property, which may successfully prevent a spouse from posting content if the other spouse holds its intellectual property rights.
While it may be possible to argue that a BFA’s social media clause is valid if, for example, a spouse’s income depends directly on their reputation, such clauses can potentially still be deemed invalid by a court.
Still, experts suggest that at least taking such measures can signify clear intentions, which can be significant in court proceedings. It’s also considered to be helpful in terms of encouraging future spouses to discuss their values in relation to social media use during the BFA drafting process.
Given the uncertainty of the legal standing of social media clauses in BFAs, are there any other legal ways to protect yourself from the repercussions of social media exposure?
An alternative recourse to inserting clauses into BFAs may be to rely on defamation law. If, for example, you become aware that a posting will be made which results in a falsely negative imputation about you which will damage your reputation, it’s possible to apply to the courts for an urgent application to prevent its publication—however, knowing of such intentions in advance is often unlikely. On the other hand once false and damaging information has been posted, it may be possible to sue for damage to your reputation.
Also, in cases where intellectual property clauses are not helpful, for example if a compromising photo has been posted but the poster, if they have also snapped the photo, owns the copyright in the photo, the new revenge porn laws emerging around the country may become relevant.
In terms of family law, if you are going through the court system, you can add to the orders you are seeking ones which will restrain the other party’s ability to make negative social media postings about you, particularly if you have evidence that this has been occurring. The courts do have the power to make such orders–for example, one mother who published a personal blog on which she had been occasionally blogging the more negative aspects of her relationship with her children’s father, was eventually forbidden by court order from further blogging anything negative about her child’s father. The court determined that this was in the couple’s children’s best interests, in case they at some future time came across the mother’s blog.
Parties in family law proceedings are already forbidden by law from publicly discussing any aspect of their family law case which may identify their children, but judgments now often expressly order that a spouse is, for example, restrained from “publishing any matter on social media which would or could reasonably be inferred to relate to these proceedings and/or the [spouse] or children, or any member of the [spouse]’s household or family”. This restraint on making postings regarding the spouse or their family generally, clearly widens the scope of the information implicitly forbidden from publication under family law.
It’s important to remember that a social media clause or order cannot absolutely guarantee that your information will not be posted, no matter how serious the poster’s consequences may be– and once it is, it will never be able to be unposted. Anyone with access to the internet can make a search about you online—including employers, lawyers for the other side, potential romantic interests, and creditors. Electronic data cannot be unsent or ever fully erased, especially if someone is particularly intent on retrieving it.
No matter what efforts you make to ensure your personal information is legally protected, the best way remains to effectively and proactively manage your own privacy and security settings when using your social media, and to behave as if every single keystroke you make will be available for the public–including your ex, and a judge–to see. When it comes to protecting your reputation and your privacy, prevention is far better than cure.
Would you like help drafting a prenuptial or postnuptial Binding Financial Agreement, or do you need assistance with court proceedings? Please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.