To tweet or not to tweet, that is the question

Posted on: March 15th, 2017

We look at the impact use of social media has on family law practitioners and their cases.

The use of social media is so entwined in everyday life that it’s no surprise that it is starting to impact on those of us advising clients on a divorce or how to sort out the children arrangements following a separation.

For many, the idea of going more than a few hours without posting a comment online, sharing photos, updating a profile or tweeting is absurd. There is not necessarily anything wrong in that, but the problem comes when family life breaks down and things that people say and do come into the spotlight during divorce proceedings.

Human nature is such that it is difficult for couples to continually exercise restraint when emotions are running high. Arguments and conflict make people act irrationally. Turning to loyal friends and family on social media to make and score points by posting derogatory comments online is now a common theme in divorce and children’s cases.

Divorce lawyers will be familiar with the emails from clients, often sent late at night, having a full blown rant about what their other half has done; if this gets things off their chest then that is part and parcel of the job. The pitfall comes when they have the same rant on social media for all to see and even involve family and friends.

In one particularly acrimonious case, the couple in question had taken their row online, posting increasingly derogatory comments on their Facebook pages which were entirely open so that the friends and parents of their teenage children were all party to the dirty linen being aired. Imagine the emotional damage caused to their 14-year-old son who was already having to cope with the the breakdown of his parents’ relationship but then had to go to school knowing that all his friends knew every intimate detail of the sorry state of his parents’ marriage.

Social media is having the biggest impact on children’s cases involving disputes over residence and contact. It is now increasingly common for clients to send screenshots of text messages or of posts or photos as ‘evidence’ of what they perceive to be wrongdoing. The courts have been rightly very reluctant to allow this evidence unless it is fundamental to the issues in the case or it goes towards questioning the credibility of the witness. It is often the latter where social media evidence is playing a role because photos and posts can entirely contradict the picture that has been carefully crafted as evidence in a witness statement, and this can have an impact on the overall settlement. So, the unguarded comment made in anger that would have never seen the light of day is now shared widely on social media and can come back to bite.

Families now link their electronic devices to each other with shared data stored on the cloud. This has led to couples being able to inadvertently access each other’s online history, texts and emails even when the owner thinks that their phone or iPad is password protected. On more than one occasion, this has led to a party finding out about the other’s infidelity. It also blurs the lines on disclosure issues within divorce proceedings; if the family set up their IT and social media so that devices were purposely linked and shared has an Imerman situation arisen or not when one party can freely access the social media history of the other’s device?

Some celebrity couples are not afraid to embrace social media when separating, to use it to influence public opinion, set the agenda, and even paint themselves as the injured party. They are often highly adept at this strategy which can be difficult for the divorce lawyer who is trying to conduct discussions constructively and privately with a view to keeping a lid on emotions.

What is clear is that social media is here to stay and whether we like it or not it is something that family lawyers have to accept will continue to shape and influence a client’s actions.

This article was first published on the Law Society’s Family Section on 22 February 2017.