Social media has become a normal part of our daily routine, and many people freely share their personal lives with their friends and family without thinking about the consequences. Whether you realise it or not, a post you made in the heat of the moment could be used against you in a legal dispute. Your posts can become evidence, with Australian courts increasingly likely to accept social media evidence when faced with family law and estate disputes.

From your DM group chat to your Instagram photos and screenshotted stories, online content can impact your credibility and parenting capacity. It can even influence the outcome of a Will dispute.

Social Media: Legal Evidence in Australia

Your social media footprint is up for grabs in a will dispute or during property settlement after separation. That includes the posts you make, the comments you reply to and leave on someone else’s page, and location tags. You may think your direct messages are safe, but those can be subpoenaed and used in court as evidence. The Mushroom Case is a good example of how your social media use and online footprint can be used to secure a conviction in a criminal trial. It’s also a good example of why you should be careful with how you use yours to avoid it coming back to haunt you in the event of a Will dispute or property settlement process.

Ultimately, if it’s relevant to the case, it can be used under the Evidence Act 1995. In the case of Will disputes and divorce property settlement, social media can prove claims about the property pool, highlight any behaviour inconsistent with the parenting order, and even demonstrate the timeline of a communication or relationship breakdown. If someone is claiming they need additional support while jetting off on lavish holidays, social media can prove lies about the assets, income, or lifestyle.

Family Law Disputes: The Risks of Posting Through It

Your social media is your own, but making emotional posts through a family law dispute could damage your credibility. Likewise, it opens the door to making statements that are inconsistent with the court record, which could undermine your case. You might be able to go back and sanitise your accounts to delete any questionable posts, but if someone is actively watching, they will take screenshots, and those live forever. 

Additionally, family and friends can unintentionally harm your case by tagging you in posts and comments, so use your privacy settings to make your profile private and prevent people from tagging you to be on the safe side. 

Parenting: Why Online Behaviour Matters

The court does its best to cater to the best interests of the child, and if the other parent presents social media evidence against you, it will be used to assess your parenting capacity. If you post photos that show an unsafe home environment or make negative comments about your co-parent, these posts could be used against you. Likewise, if you make posts, comments, or post photos that imply drug or alcohol misuse.

Even if your account is private, your posts can still be shared as evidence in court if they were obtained lawfully. All that takes is one person to screenshot it and send it to your co-parent. For example, if a parent regularly makes derogatory comments about their co-parent or posts about the number of times they were late for changeover, these can be used to question how cooperative you are.

Property Settlement & Financial Claims

Social media could potentially reveal spending habits that contradict financial claims and reveal undeclared assets. If you post pictures of high-value purchases or allude to a lavish lifestyle, it could lead to deeper interrogation of your financial disclosures. Likewise, if you carry out business activity online, whether it’s selling on Facebook Marketplace or with a Shopify store, the court could scrutinise your sales. Either way, it could endanger your family law property settlement.

Will and Estate Disputes

Family Provision claims allow for eligible persons to contest or challenge a will, and in these cases, social media can prove the nature of your relationship with the deceased (for better or worse), show evidence of ongoing contact or an estrangement, and also demonstrate a claimant’s financial position. For example, if a claimant alleges financial hardship, but regularly posts expensive purchases, it’s unlikely to go in their favour.

Legal Proceedings: Protecting Yourself Online

Practical Tips 

  • Don’t make any posts or comments related to your dispute, even if you think it’s subtle.
  • Always check your privacy settings, but remember that nothing is ever private because anyone could take a screenshot and pass it on. 
  • Ask your friends and family not to mention or tag you, or simply change your privacy settings to prevent it. 
  • Always be respectful and factual in your communications. 
  • Always take legal advice, especially if you’re thinking about sharing sensitive content.

Take a breath; take a moment; pause before you post.

FAQs

Can deleted posts be used against me in court? 

Yes. 

Can private messages be subpoenaed?

Yes. 

What if someone else posts about me? 

Take the high road instead of replying or posting about it. Take a screenshot and share it with your lawyer. 

Are social media posts sufficient to win a case? 

They can certainly turn a case on its head if they are compelling enough. If you suspect someone is going to leverage social media against you, speak to your lawyer as soon as possible. 

Final Thoughts

Social media is a blessing and a curse, and ultimately, the best way to prevent yours from being used against you in a legal dispute is to post responsibly. One careless post could damage your credibility and derail the outcome of your case. The best course of action is to avoid posting on social media at all while a legal dispute is brewing; that way, it can’t haunt you down the line.

Before you take legal action, contact AJB Stevens to schedule a free consultation with an experienced member of our team.