Social Media Publication of Proceedings

With the prevalence of sharing on social media comes the risk of identifying parties to family law proceedings, the details of which are confidential. A party “venting” via posting photos or comments on Twitter, Instagram, Facebook or a similar forum can leave that party open to prosecution under section 121 of the Family Law Act 1975. This section states:

“A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)  a party to the proceedings;

(b)  a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c)  a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.”

The use of social media is captured by the words “by other means”, and “disseminates to the public or to a section of the public”. Family law courts have been increasingly willing to accept social media as evidence. This includes identifying material as well as negative and damaging posts, text messages, photos and emails.

How a party can be identified

Section 121(3) states a person will be identified if the account of proceedings contains any particulars of the person’s:

• name, title, pseudonym or alias;
• home or work address;
• physical appearance or dress style;
• job, occupation, official or honorary position;
• relationship with identified relatives, friends, or business or official associates;
• recreational, political, philosophical or religious beliefs;
• real or personal property.

The section also prohibits identification of a person via use of their picture or their voice.

Exceptions to section 121

The provisions do not apply to:

• communication of any pleading, transcript of evidence, or other document in:
  • a court proceeding;
  • an investigation by child welfare authorities;
  • disciplinary proceedings against a member of the legal profession;
  • a body that grants Legal Aid;
• the publication of:
  • a notice or report at the direction of a court;
  • a court list of proceedings;
  • law reports or other technical publications;
  • an account of proceedings, to a lawyer or person who is party to proceedings, or to a student for study purposes;
  • accounts of proceedings which have been approved by the court.

For example, it is possible to use documents from family law proceedings, such as affidavits or expert reports, in criminal proceedings or applications for family violence orders. However, the Family Court can impose conditions on the use of the documents, such as redaction of certain details which are not relevant to the proceedings.

Enforcement

Family law judges do not have authority to deal with breaches of section 121 of the Act. Such breaches are referred to the Australian Federal Police (AFP) for investigation. If the AFP believes it has enough evidence for a prosecution, it must have written consent from the Director of Public Prosecutions before it can commence proceedings.

Case law

Case law shows that to breach section 121:

• there must be wide dissemination;
• those provided with the information must not have a significant and legitimate interest in the information;
• those provided with the information must not be a party to the proceedings.

Lackey and Mae [2013]

The father and his family made derogatory comments on social media about the court, the Independent Children’s Lawyer, expert witnesses and the mother. The court found the father had breached section 121 of the Act and ordered that he and his family remove all Facebook references to the court proceedings and refrain from publishing anything further about the proceedings. The AFP was asked to monitor the social media activity of the father and his family for two years to ensure compliance with the order.

Xuarez v Vitela [2012]

A father published material on his website that included the names of parties and other identifying material, as well as names and photos of legal representatives he described as “corrupt”. A mandatory injunction was issued that required the father to remove the material from his website, and the AFP was directed to investigate possible prosecution of the father.

Sandex & Bondir [2017]

A mother who had unsuccessfully appealed a dismissal of her application for parenting proceedings showed court-ordered reports to a person who was not party to the proceedings. The mother was warned by the judge that her actions constituted a clear breach of section 121 because as a result of the mother’s actions, the person was able to identify those involved in the case. The woman was not prosecuted because the judge believed the breach was not committed for “any kind of malicious or deliberate purpose”. The judge went on to state: “Under the Act, the court is very, very strict on protecting the privacy of parties, particularly children, to proceedings and not allowing publication, which has got a very broad interpretation, of anything that would enable parties or children to be identified unless the court has consented to that taking place.”

For advice or representation in any legal matter, please contact Armstrong Legal.