If a client has breached s121 of the Family Law Act 1975 (Cth), it is extremely tempting to advise the client to remove and delete the social media posting. However, practitioners need to advise a client to delete or remove social media posts. [1]
NSW has legislated this obligation in s177 of the Legal Professions Regulation 2005 (NSW), and while Queensland does not have an equivalent provision, it is a fair bet that Queensland will in the future.
Advising a client to clean up, delete or remove social media posts could also be viewed as breaches of s129 (Damaging evidence with intent) and s140 (Attempting to pervert justice) of the Criminal Code 1899 (Qld).
Practitioners should warn their client from the start how vital it is to not post anything about their family law matter on social media, regardless of how angry they are or how badly they believe the other side is behaving. It can have a detrimental effect on the outcome of their case in Court and the relationship between the parties in the future. This is particularly important if there are children involved as it is contrary to their best interest.
Practitioners should be extremely cautious about advising clients to clean up their social media platforms where legal proceedings are being considered.
If practitioners do come across social postings during the course of their clients’ matter, they should take copies and keep these in a safe location.
Practitioners should also remind clients that postings on social media can and often will be shown to the Court. If the social media post is something that the client would not like the judge to see, then the best advice to the client is not to post it!
[1] “Dirty laundry online” by Stafford Shepherd – Proctor March, 2012.
