Social media clauses in Family Law

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Images and information shared in happier times can be weaponised during the course of an acrimonious breakup, and wounded exes are not known to exercise restraint. It might be party photos, happy news about a new job or promotion or even those sweet snapshots of a toddler in the bathtub playing with soap bubbles.

Facebook, Instagram and the like are not your friends, now.  If you are in the middle of a divorce, many attorneys will advise you to get offline to every extent possible. However, nothing is really ever deleted off the internet, and if you have posted something that in retrospect you would rather not see the light of day – what options can you take? 

If you had the foresight to include a social media clause in your BFA, can it help? The short answer is maybe, some. Nothing is as good as preventing the problem, however, by always being very judicious about what you post.


Benefits of Social Media Clauses

The first benefit, of course, is that the conversations and negotiations preliminary to the finalisation of a BFA will give you and your significant other the chance to be clear about your expectations of privacy in social media postings. That may reduce the possibility of an inadvertent offence.

The second is that clearly drafted social media clauses may support a lawsuit for breach of that agreement. The risk of financial consequences may slow down or deter a vengeful ex.

Finally, the same clear statement of what you regard as protected personal information may also support a non-contractual lawsuit for defamation.


Limits of Social Media Clauses

On the other hand, though, the existence of a social media clause may not actually prevent a very wounded and angry person from posting something offensive about you. Many a promising professional career has quietly disappeared under those circumstances. No financial award can undo that harm.

Publicly disseminating pictures of individuals who are related to or associated with a party to a Family Law proceeding, including a couple’s children, could be an offence under the Family Law Act. Were such a posting offered as an indication that either party is an unfit parent, it might be hard to argue that the harm is financial, for example. It is certainly real, though.

Social media clauses in any contracts have become increasingly popular. It might be a mistake to lean too heavily on them, however, at least without considering other remedies.

If you have questions about social media clauses in Family Law, the attorneys at Owen Hodge Lawyers would like to help. Please call us to schedule a consultation at 1800 770 780.


For further information about this topic, see our other post – Social media used as evidence in Court  

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