The rise of the social media “influencer” is one of the hallmarks of our times. An influencer may be defined as an individual who, through promotion or recommendation, can influence their followers to buy services or products. Because influencers live their lives more in the public eye than most people, when they are going through separation and divorce it can be difficult for them to abide by the legal constraints imposed during a family court proceeding. In Australia, the law prohibits anyone from publishing details relating to cases where the parties are identifiable. This article outlines the restrictions that are imposed on social media influencers during these matters, the consequences of breaching these prohibitions, and wider implications for influencer divorce and custodial disputes.
Prevalence of Influencers
A recent study found more than 27,000 influencers active in Australia, with between a few thousand and ten million followers. Since 79% of Australians use social media, influencers have a wide reach across the country. Major brands can rise and fall on endorsements from top influencers, while small local brands can benefit from endorsements from trusted individuals recommending products to their immediate circle.
Restriction on Publication
Section 121 of the Family Law Act 1975 prohibits someone from publishing information relating to a family law case, specifically any particulars that could identify a party to a divorce proceeding. The law forbids the publication of the following list of descriptive factors (if they are seen as sufficient for identification):
- The given and family names of the parties
- The work and home addresses of the parties
- The types of relationship between the party and the individual
- Identifying physical descriptions
- The occupation or profession of the parties
- The religious affiliation or faith of the parties
- The interests or hobbies of the parties
- Real estate holdings of the parties.
Of particular note for social media influencers is the restriction on any publication of photos, video or audio recordings. There are a small number of exceptions to the law, but none that would sanction an influencer posting details of their family law proceeding on a social media platform. If someone acts in contravention of this law, the Federal Circuit and Family Court of Australia (FCFCA) may refer the matter for indictment, on a charge punishable by imprisonment for a year. It is very unlikely that the court would impose this penalty if the posting was inadvertent or non-malicious, but both parties should be aware that the court takes a dim view of parties breaching the restriction.
Evidence in influencer divorce
Any information that is revealed online can be used against the parties in court during parenting disputes or property settlements. Publishing insulting language against a former spouse makes it harder for a party to claim that they are restrained and mature. Threatening a spouse with violence online can result in the court issuing a Domestic Violence Order, or a DVO breach. A casual remark on Facebook about intending to limit contact between a child and the other parent will be taken seriously by the courts. Someone in the middle of a distressing divorce or property settlement may later regret sharing their private grievances, especially if there are children involved.
Beyond the legal implications of publishing information about a family law matter, it may be best for an influencer not to air their family law issues in order to protect their own brand. In some cases, influencers have built an entire brand on a particular public version of their family, and a family breakdown may directly impact on the value of their brand. For this reason, both parties may have a vested interest in preventing acrimony being exposed via social media.
Implications for Influencer Divorce and Property Settlement
If a couple shares a social media account that generates income, it can be a complication during a divorce and a property settlement. It may be difficult to assign a value to such an enterprise, and if there is disagreement over the valuation, an independent valuer can be engaged. However, the court prefers parties to come to an agreement over the division of marital assets, so the best approach would be for one spouse to take possession of the income-generating account in return for the partner receiving an asset of commensurate value.
If a couple cannot come to an agreement over the division of assets, the court will apply a 5-step test on the distribution of property. This particular business interest would be factored into the court’s calculations of the contributions (financial and non-financial) of each party to the asset pool of the relationship and as a future source of income for one of the couple.
If you would like to know more about how influencers should proceed during a divorce or other family court matter, please get in touch with our family law team at Armstrong Legal. Phone 1300 038 223 or send us an email.