family law

How NOT to Get Your Family Law Case Destroyed by Facebook

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Like it or not, many cases find themselves entangled with social media. Things done on the Internet can have drastic effects in someone’s personal life, and many cases have been destroyed by actions on Facebook. Social media can’t even be blamed for such things because it is a natural consequences of their ill-thought actions.

Facebook is used in one-third of divorce law cases. Activity on Facebook is used as evidence for marital infidelity, falsifying income, false testimony, or harassment.

Defendants and jurors are not to be mentioned or contacted by anyone, and doing so might harm the case even if you wish to express sympathies or offer information you might think is useful. This is the sort of thing that can land you in jail and sabotage an ongoing case for lack of an impartial jury.

This article will cover not just good social media habits when you are in the legal process but also case examples of how Facebook posting has impacted their real-world cases.

Do not rely on Facebook and other social media for legal advice

It is easy to create groups of like-minded individuals in Facebook under a theme or topic. For many people, Facebook is their portal to the Internet and there is little need to go far beyond it because social media is all about linking to things they find interesting from all over the web and users who primarily interact with Facebook can get a curated experience.

But taking legal advice from Friends and Groups you have on Facebook is a terrible idea.

A study carried out by Dr Tatiana Tkacukova from Birmingham City University and Professor Hilary Sommerlad from LeedsLaw School evaluated the quality of advice dispensed by advisors on online social media platforms.

The research took in the advice handed out on 170 Facebook threads by 30 different McKenzie Friends – litigation friends who help advise those representing themselves in court (known as Litigants in Person or LIPs) on a voluntary or paid basis.

It showed instances of McKenzie Friends advising parents to ignore the advice of lawyers, suggesting courts were institutionally unfair and in some instances advising people to act against the advice of their lawyers while promoting the services of McKenzie Friends.

Words used to describe Family Courts and social services include ‘gender-biased’ and ‘disgrace,’ while social services are also accused of not delivering, asking ‘stupid’ questions and being incompetent.

The study found only one positive description of a judge in all of the posts analysed, and on three occasions parents were advised to write their own statement instead of following specialist legal advice.

It found that of the 30 advisors online only two were ex-lawyers, with three being former Litigants in Person, 11 active fee-charging McKenzie Friends and 14 being McKenzie Friends moderators.

Because it is so easy to find like-minded individuals online in a Group, there is a danger of said group becoming an echo chamber for anti-legal system. People are attracted by explanations to the legal system and the language of law that to them appear completely alien. Unfortunately this could lead people to believe that legal expertise is not necessary and have them attempt to just represent themselves… which historically has always been a terrible, terrible idea.
Please do not do this. Do not rely on Facebook for advice in your legal problems. Always consult with a legal professional.

Privacy is paramount court proceedings

Cases held under Family Law are stricter on upholding privacy than other forms of litigation. This is even so much more so in cases that involve sexual offense or children. Victims of sexual offenses are supposed to have the benefit of lifelong anonymity. Defendants are supposed to be protected from harassment in the court of public opinion. Naming children who are part of a trial is illegal except in exceptional circumstances.

This injunction applies to individuals and also the press.

Contempt of Court in sharing Facebook details

One case example is EWHC 2473 (FAM), in which a Mr. H (defendant) was committed to prison for 10 months for contempt of court.

While the defendant had exhibited many behaviours that demonstrated contempt of court, refusing to attend proceedings, and at one point stripped naked in the custody of officers such that he could not be brought to court that day, it is the publishing of information about Family Court proceedings that he was arrested for.

“Cases in the family court involving children are heard in private. Nothing may be publicly reported without the leave of a judge. This is all made entirely clear by the Children Act 1989. It is a contempt of court to publish anything relating to such proceedings. That too is made entirely clear by section 12 of the Administration of Justice Act 1960.”
– HHJ Jeremy Richardson QC

The defendant was the father of children, one of whom was the subject of Family Court proceedings. In contravention of a court order and defiance of an Act of Parliament, he repeatedly published information about the case to the Internet via video posts via Facebook. In the course of the video posts he was extremely abuse to officers of the family court and the judge and gave no mind to how this might affect the children concerned or their mother.

The defendant was repeatedly advised he was entitled to legal aid but strongly insisted on representing himself.

Due to his refusal to attend proceedings and being very disruptive even during his trial to the point that he could not appear in court, meant that he was committed in his absence. He was sentenced to 10 months in prison for contempt and a fine of £22,423 to recoup costs of the Attorney General due to the protracted nature of the proceedings that were entirely the fault of the defendant.

According to HHJ Jeremy Richardson:

(4) CAFFCASS officers are particularly vulnerable in the family justice system.  They undertake very difficult and sensitive tasks in the course of difficult family cases. They must be protected by the courts – and this embraces their public anonymity.

Privacy in the Family Courts protects many. While CAFFCASS officers do not hide in their execution of their duties, being exposed to mass awareness in an abusive way puts them in danger as much as naming defendants and victims. Refusing to obey
There are many other such cases in which people involved in a case unwisely share information on Facebook. This is why Family Law solicitors have to advise their clients not to speak about their ongoing cases even to their friends and family.

Can Facebook and Instagram posts be used as evidence in Family Courts?

Yes. Posts, comments and media shared on social media platforms are admissible as evidence in the court of law.

However, it is not as simple as taking a screenshot and showing it as evidence. There are software companies that specialize in capturing and certifying web evidence, and the court may call upon Facebook, &tc., to disclose their own records, and copies of the data in question.

Because it is relatively easy to alter or take posts out of context, capturing web evidence needs to preserve all metadata (timestamp, IP address, URLs, etc.) associated with the content to prove authenticity and to present a true and accurate representation of the web content such that it is exactly as it appears online.

Attempting to falsify a Facebook narrative

Knowing this, some people have attempted to use Facebook itself to slander, shame, or falsely represent individuals they dislike. The ease by which an account can be created, and due to Facebook being so huge in its membership that checking for the authenticity of its members would be labour-intensive to be impractical until noted, means that malicious actors can create otherwise identical profiles that may mislead people into thinking it was the valid profile of the person that they know.
Using this profile they may then attempt to drive a harmful narrative about that person.

One example is [2008] EWHC 1781 (QB).

In this case, a Facebook profile was created in the name of Mr. F, which contained his photograph and his private information. Then a Facebook Group was set up which linked to the profile by hyperlink, which was called “Has (Mr. F) lied to you?” which contained material defamatory of Mr. F and the Applause store.

Neither the profile nor the group were set up by the person in question, but were set up using a computer that had a Mr. R’s IP address – a computer that was traced to be located at the flat where he lived. This Mr. F was a former friend of Mr. R. but had become estranged some years back due to business disagreements.

The false profile contained alleged information to Mr. F’s sexual orientation, his relationships, his political and religious views, which were a mixture of inaccurate information and other information that Mr. F had a legitimate expectation of privacy. It was claimed that Mr. F owed substantial sums of money which had repeatedly avoided paying and making implausible excuses for not paying, and as such should not be trusted with the financial conduct of their business.

Mr. F obtained a High Court order against Facebook for the disclosure of registration data provided by the user responsible for the false profile, including email addresses and IP addresses.

Using this information, it was possible to create an activity log that showed access from this IP to Facebook – down to the minute on 19th June 2017, the date in which the profile was created.

During 19 June there were two computers within the flat. One was a laptop computer belonging to Ms. H, whom Mr. R had been dating for about three weeks at the time, and which Mr. R often used. Another was a desktop computer which was kept in the study.

The timestamps showed that from their IP, only Ms. H accessed Facebook from Mr. R’s IP address before 4:35 PM on 19 June. From then on, a user using Mr. R’s Facebook profile was accessing Facebook.

Mr. R logged off at 5:40 PM and the next entry in the log did not occur until 9:04 PM, over three hours later.

Mr. R’s evidence was that during the evening of 19 June, he met up with friends from work. Ms. H joined them later with friends of hers, and then others arrived until the point they were a part of 8 people. They returned to the flat that Mr. R rented, along with 4 people that he considered ‘strangers’, at around 8PM. He could not recall specifically inviting them nor remember their names in vague terms.

They socialized until at some point around 10PM the party ended and Mr. R went to bed, Ms. H going to bed 45 minutes after he did.

Facebook’s activity log showed that at used logged on with Mr. R’s credentials at 9:04 PM, an hour into the party. Mr. R under cross-examination accepted that at this point he was the user. He logged off at 9:24:50 PM.

Then at the 9:25:31 PM, a computer at Mr. R’s IP addressed accessed facebook again but this time under the username of Mr. F with a new user identity.

The time between Mr. R logging off and Mr. F signing on as a new user is 5 minutes. In this period, a user signing up to Facebook must open their email and click a link in the validation email to complete registration. It was suggested during cross-examination that this was Mr. R was doing – waiting for the validation email to come in.

If it was not Mr. R’s doing, it could only be the doing of another person in the party.

However, the records show all activity on Facebook from the IP address thru 19 and 20 of June, and if two computers were being used simultaneously then it was improbable for Mr. R to log off entirely during the entire time Mr. F was active on Facebook.

Defamatory material was uploaded by the Mr. F profile on 2:11PM the next day on 20 June 2017. The vast majority of the activity was for the defendant’s profile, which runs contrary to the claim that a stranger was accessing the defendant’s inbox with a relaxed attitude although the defendant might return at any time. Upon logging off, immediately Mr. F’s profile then becomes active in a pattern that is consistent with the events of the previous night.

Facebook’s activity log provides a unnervingly in-depth amount of information not just on the timestamps of logging on, but also what the user had looked at on Facebook, the links they followed, and the actions undertaken, all down to the second.
According to the court:

40. It is possible, though unlikely, that a stranger might have got away unnoticed with making an hour’s unauthorised use of the relevant computer in a small and crowded flat; it is possible, though unlikely, that he or she would have been in possession of the detailed information which appears on the false profile and unlikely that he or she, having created the profile, would then spend many further minutes using the new profile to search for a number of individuals whom he or she would have been unlikely to have known.  This is a good example of using the precise timing and nature of the social media interaction to render yet more implausible the narrative provided by [Mr. R].

41. The above worked example therefore demonstrates how one can disprove a narrative using the data held by a social media company regarding the particular activity undertaken at specific times. The data provided undermines the narrative given by [Mr. P]; it creates numerous incidents of implausibility in the story [they are] telling, and not just a single incident that could be dismissed as coincidence.

42. There are numerous ways that the data held about clients, voluntarily given to these third parties on a regular, probably daily, basis can be used to disrupt a narrative provided by them. This could be a narrative pertaining to their financial position, their precise location at a given time, where they have abducted a child to or whether they confided something to someone that is of relevance. This huge store of information is available to practitioners, and possibly not long before it is a routine resource for the Court.

While it is true that Facebook accounts are vulnerable to being “hacked” or accessed improperly, there is strong attached to metadata every action done on Facebook. Investigators can use this information to validate claims about false and criminal Facebook activity.

If you are on Facebook, you are not anonymous no matter what you do. The depth of your private information and habits known by corporations may be far more than you think. While it is indeed very easy to pass off falsehoods on Facebook, it is also not a guarantee of being able to escape consequences.

If you are a victim of Facebook-based malfeasance, you should rely on online-aware solicitors to help you leverage the powers of law instead of attempting to correct things or fight fire with fire yourself. Arguing with people over the Internet solves very little.

What to do on Facebook if you have legal proceedings

  • Say nothing about your case.
  • Do not attempt to delete or rewrite evidence because a conversation might be gone from your end but it will still exist in the other person’s side. Police authorities can request a warrant to have Facebook give access to a “deleted” Facebook account.
  • When evidence has been removed, in addition to penalties this can go worse for the defendant because then the prosecution can say that their accusations are exactly what was in the evidence removed. This is “adverse inference” and itself counts as evidence.
  • Be careful of other people having illicit access to your accounts. Protect your Facebook account the same way you would secure your emails and financial information.
  • Again, say nothing about your case. Maintain confidentiality about your ongoing proceedings in all matters.
  • If your evidence against the other party involves Facebook content, call upon lawyers and trained professionals to compile documentary evidence as soon as you can instead of attempting to do things yourself. Don’t do anything that might accidentally amount to tampering with evidence.

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