What lawyers (and clients) should know about using social media

Recent high profile social media posts (and their legal consequences) give practitioners cause to reflect on what they post online, and what they should warn their clients about posting online.

With one exception, there is no difference between saying (or doing something) on a social media account versus something that is said “in the real world.” Sydney’s Domain has had a ‘speaker’s corner’ in operation since 1878. Before that, the government allowed a space in Sydney’s Hyde Park for similar purposes. London’s Hyde Park still has its “speakers’ corner” in operation.

There is the old saying that “today’s news is tomorrow’s fish and chip wrapper.” The only difference between this, and online posts, is the permanency of the latter. The more harmful nature of the written word (as opposed to the spoken word) was of course recognised in the old common law distinction between libel and slander as distinct forms of the tort of defamation. Section 7 of the Defamation Act 2005 (Defamation Act) abolishes that distinction. The enactment of the Defamation Act is curious because arguably it was the point in time in history where the distinction became more relevant because of evolving state of the internet (Facebook, for example, started in 2004).

Anything that is published online runs the risk of ending up in a courtroom. A common feature of personal injury litigation is for an insurance company to commission a ‘desktop investigation.’ The days of private investigators sitting in vehicles, suspiciously parked across the street from plaintiff’s homes, hour after hour, eating donuts and hoping to capture some “gold” on film are all but gone (although it still happens occasionally). The need for private eyes to climb trees with zoom lenses to catch a wayward spouse straying from their marriage vows, ceased to be appropriate with the advent of “no fault” divorce when the Family Law Act 1975 (Cth) commenced. Although this was before the writer’s time, divorce hearings seem to be a little more entertaining back then.

These days, it is more common for an investigator to go “online” with hopes that the security settings on the plaintiff’s social media accounts are not too restrictive. In a psychiatric claim, a plaintiff who claims that he or she is agoraphobic and can’t leave the house might have posted a few group selfies from a night out at the RSL. An orthopaedic claimant who alleges an inability to do heavy lifting might have a TikTok clip deadlifting 150kg. Neither is ideal for their respective cases, but this sort of material is clearly relevant and admissible (sections 55 and 56 of the Evidence Act 1995).

Arguably, even if this sort of evidence only goes to quantum, rather than liability, it is likely to destroy a plaintiff’s credibility if the histories given to medico-legal doctors is proven to be false by the social media post.

A legal practitioner’s professional obligations

Lawyers need to be especially careful in this area. Lawyers (like anyone) can end up as defendants in defamation proceedings. The greater (and more troubling) risk for the lawyer is to be charged with contempt, which could be professionally devastating. Rule 28.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 states:

“A solicitor must not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the administration of justice.”

What is notable about this rule is that it is not limited to a proceeding in which the solicitor is acting. It could be any proceeding. Lawyers may in certain circumstances be bound by the rules even when they are not acting as lawyers. This is demonstrated by the famous case of Ziems v Prothonotary (1957) 97 CLR 279. In that decision, a drunk barrister caused a motor vehicle accident in which someone died. He was convicted of manslaughter and the striking off order (made at first instance) was reduced to mere suspension from practice for the duration of his sentence by the High Court.

In any case, any conduct (whether in the course of practice or not) that renders a practitioner as no longer a “fit and proper person” for practice has obvious ramifications. In extreme cases, a social media post could be contemptuous. Interestingly, rules 76 to 78 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 is drafted differently. It includes a general prohibition (with some exceptions) on making comments in the media about cases in which they are briefed or likely to appear. A comment about the guilt or innocence of the accused would be an obvious thing to avoid, as would issues going to the credibility of the complainant. Public comment would be especially dangerous in jury matters because of the risk of not only discharging a presently empanelled jury, or worse, precipitating an application for a stay.

Transparency of the legal process is one of the foundations of the common law system. Legitimate reporting on cases should be encouraged. However, I make the respectful suggestion that it is better that, as a profession, we leave reporting to journalists. The relationship between journalists and the legal system is (in itself) not without its tensions (News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248). Learned commentary on cases can only meaningfully be offered by lawyers after judgment in any event. Continuing Legal Education presentations (which are frequently video recorded) should not be fettered in the sense that the presenter should feel free to express his or her own view about a case (taking care not to defame anyone in the process). The legitimate process by journalists in covering a case may be aided by the equally legitimate comment by a lawyer about that case but the technical aspects of the professional regulations are slightly different between solicitors and barristers.

The exceptions to generally prohibited media comment about a case in which a barrister is briefed may also be instructive to solicitors, despite the absence of a similarly worded rule, because it serves as a guide to what should (or should not) be said. For example, sub rule (a) states:

“[A] barrister may supply answers to unsolicited questions concerning a current proceeding provided that the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case, the nature of the orders made or judgment given including any reasons given by the court and the client’s intentions as to any further steps in the case…”

Non-lawyers are generally not alive to the nuances of the creation of the lawyer-client relationship. For example, social media posts on a law firm’s social media page, might be seen as “advice” by a client of the firm who follows that page. Even if the post has nothing to do with that client’s matter, they may nevertheless see fit to act on it especially if, in that person’s mind, the post was made by “my lawyer”.

In negligence, there cannot be a breach of duty unless a duty exists (which would be doubtful in these circumstances). The standard disclaimer that the post is not legal advice and that all cases are fact specific should always be included. It is conceivable that a lawyer-client relationship could be created online (for example, it would not be unarguable that if a person comments on a lawyer’s post, and the lawyer replies to that comment then such a relationship exists). A balance needs to be struck. A total ban on posts about legal issues could have a chilling effect on the legitimate process of educating the public about legal issues.

Practitioners should be aware that social media comments about topical issues may, if regarded as amounting to dissemination of false information, be regarded as misconduct. During the height of the Covid-19 pandemic, doctors (and lawyers in some instances) faced criticism from their professional bodies for publishing online posts addressing the merits of vaccines etc.

A related issue is using social media chat systems to communicate about cases. It is natural that legal practitioners become friends and sometimes, when we call someone “my learned friend,” we mean it. Friendships in the real world create parallel friendships in the social media world. There may be a temptation to send a lawyer (who also happens to be a friend) a message on a chat platform full of comments about a case that the participants are involved in. However, this could lead to great embarrassment if a subpoena is issued for the chat history. As Justice McCallum (as her Honour then was) said in a well-publicised case against a large law firm about sex discrimination (which settled):

“It is difficult to decide whether it is more surprising that the remarks were made at all (after over a century of feminism) or that a lawyer recorded them in an email (after over seven centuries of subpoenas).”

Although that comment was made about email communication, the informality of chat-based communication potentially creates an even greater risk. It is imperative that any communication about a case online (even if it is seemingly private like in an email) maintain a professional tone.