Greg Flett: Family law and the Facebook ‘faux pas’

In terms of numbers, Facebook is now the world’s third largest country – behind only by China and India – and the sheer size of its ‘population’ brings with it a huge number of complex legal questions and issues.

With the separation between the virtual and ‘real’ world, increasingly blurred, comments or images posted on Facebook (and similar websites) can have very real ramifications. It is no longer rare to come across stories in the press whereby a personality is forced to make an abject apology, or public servant demoted or even fired, because of some indiscreet comment posted for all the world to see.

Less well publicised is the growing consequence of a ‘Facebook faux pas’ within the context of family law, with individuals leaving behind a virtual trail that can, and in many instances already have been, used against them, particularly in cases involving divorce and child custody.

Take the situation where a husband and wife have broken up; it does not require too much imagination to see how or why information, which is freely accessible to the other party, could be accessed, downloaded, printed and lodged in court. Even when a husband or wife ‘unfriends’ their separated partner, what of their mutual ‘friends’ who may be allowing their aggrieved spouse to view and access their information?

One of the saddest aspects of contemporary society is not just the break-up of families but the level of bitterness which often accompanies it. Consequently, the most innocuous situations are regularly exploited by one party to gain the upper hand over the other. Within the ‘Facebook generation’, a situation could arise where photographs uploaded by a child and accessed by one parent could end up in court to be used against the other parent in some way. Seemingly harmless images showing a child’s drawings on the living room wall could be used as evidence that the parent has lost control the child. Photographs of a gathering of friends could be used to illustrate that one parent leads a wild lifestyle and one inappropriate for the care of a child. Things said, commented upon or ‘liked’ can all be printed and put before the eyes of the court.

Records of conversations or images from Facebook are now regularly brought up in court, not just within the concept of family law but in wider civil disputes – e.g. cases involving extreme examples of business rivalry or when former friends fall out. This is often accompanied by internet-posted pictures (some of them doctored) which would be regarded as explicit or offensive (even in a non-sexual context).

Privacy settings are, of course, helpful but they will not prevent a friend, or someone pretending to be a friend, from accessing your information. Furthermore, information that one believes is secure may be accessible by someone who has sufficient personal information to take a few well educated guesses at one’s password.

For example, if someone adds their mother as a family member the usual password of your mother’s maiden name no longer seems so secure. This is particularly so if the person trying to access your account knows your date of birth. “Smith81” is now not looking as secure a password as you once thought it was.

Information may also be accessible through more insidious means, such as the employment of personal investigators specialised in accessing electronic information. The methods may not be legal or appropriate, but once the information is in the hands of an opponent, there may be little you can do to stop it being redistributed anywhere and to anyone.

It is trite to say one should be wary of what information one releases online. However, for those involved in complex emotional and legal issues, it is doubly important to remain wary about the possible uses of information which is shared without a thought.

• Greg Flett is a solicitor in the civil litigation at McKay Norwell WS.