A case of oversharing (from Solicitors Journal)

Children|Family Law|Stowe Family Law|June 11th 2013

From my latest Solicitors Journal column “Family Business”, 7/06/2013.

The Law Society has issued social media guidelines for solicitors, but it’s time we 
do the same for clients, 
says Marilyn Stowe

Earlier this year, the booming interest in social media led the Law Society to issue new online reputation management guidelines for solicitors. The guidelines warned that confidential, private information shared with solicitors by clients could be broadcast to a wider audience, noted that Facebook’s graph search tool can allow anyone to look up anything shared with you there, and suggested that sharing information with clients on social media platforms could put law firms at risk of breaking confidentiality rules.

Here at Stowe Family Law, the marketing team has been busy compiling an up-to-date social media policy. Since the firm’s fee earners began using Twitter, LinkedIn and other social media networks en masse, such exercises have become a necessity.

Given some recent newspaper headlines and judgments, I believe it is now time to go further. Guidance for solicitors is all well and good – but what about a stout and comprehensive social media policy for our clients, many of whom don’t have members’ organisations or in-house marketing teams to keep them up-to-date and on the digital straight and narrow?

Let me explain. For some years now, solicitors have routinely advised clients to think long and hard before they press the ‘post’, ‘tweet’ or ‘send’ buttons. However I can’t help thinking that, in too many cases, such advice comes too little, too late.

Two recent Court of Appeal decisions illustrate the potential hazards for clients – and their lawyers – when family law issues are played out on Facebook and other sites. In the first case, Contempt: Re M, a father in the middle of contact proceedings breached undertakings not to publish certain information on Facebook and was sentenced to three months’ imprisonment, suspended for two years. A second case, M (Children) [2013] EWCA Civ 388, related to findings of fact in private children proceedings. In this case, the father was found to have “manipulated” the mother’s Facebook account, to which he had access. Both fathers’ appeals were dismissed.

Life online

One survey of 5,000 divorce petitions claims a third of behaviour petitions contain the word Facebook. The most common reasons for citing it relate to the other party’s behaviour with members of the opposite sex, and Facebook updates being used as divorce “weapons”. The figure doesn’t yet match up with what we are currently seeing at our firm, but I suspect that as people living more and more of their lives online, it won’t be long before such citations become perfectly commonplace.

Meanwhile, new social networks are springing up all the time. Here at our firm, the talk this week is of an app called Snapchat, which allows users to take a picture, add a caption or draw on it, then select a time period and send it to a fellow Snapchat user. When the time period expires, the picture is automatically erased. For some, the app’s extra-marital applications are key to its appeal: one in five users admit to using Snapchat for “sexting”.

For social media users, the potential consequences of “self-help” must be spelled out as clearly and as loudly as possible. Following the Court of Appeal’s decision in Tchenguiz v Imerman [2010] EWCA Civ 126 which ruled that the Hildebrand Rules were unlawful, we updated our standard client care letter to set out what clients can and cannot do with regard to “self-help”. But does a brief paragraph or two remain sufficient, particularly for younger clients who are accustomed to looser online privacy settings and boundaries than we might deem wise?

Potential consequences

Our new social media guidelines for clients will be given to all those who instruct our firm. Just like the social media policy for our team, it will set out a code of online conduct, from what should and should not be said online, to tweaking privacy settings for individual social networks. It will accompany the client care letter and complimentary copy of Divorce & Splitting Up given to all new clients, because I think that in 2013, it is just as important for them to read and understand. Corporate social media policies are intended to protect against liability and prevent PR disasters, but for clients whose futures turn upon the outcomes of their cases, the potential consequences of inadvisable online activity are far more severe.

This article was first published by Solicitors Journal, and is reproduced by kind permission.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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