By Andrew R. Bloch, Cross Pennamped Woolsey & Glazier PC
Facebook posts have long served as a treasure trove of evidence for family law attorneys, especially before Facebook allowed you to change your privacy settings. I know many lawyers who keep a Facebook account solely so they can see what parties may have on their Facebook pages before court. That said, does this social media post seem like something that happens in your practice?
Shauna (your favorite client): I didn’t get to see my daughter this weekend and I know my ex’s new woman, Sally Smith, had everything to do with keeping her away from me by taking her to Great Wolf Lodge in Cincinnati, Ohio. That’s facts! I’m going make sure she and my ex go to jail.
Shauna is also apparently popular with others as well. Her post attracts eight likes/loves and 10 comments.
Bad decision on your client’s part? Yes. Against your advice about posting about the case on social media? Absolutely. Civil liability to Sally Smith.
Under the recently published Zerlie Charles v. Vickie D. Vest, 72A01-1706-SC-01252, the Court of Appeals held that a post such as the one above met the definition of defamation per se. Now the Charles case was not a family case, but a small claims matter. The Indiana Lawyer summed the case up nicely:
Charles was defamed in a Facebook post by Vickie D. Vest, who had dated Charles’ son Robert for about three years before he died in 2015. A few days after his death, Vest reported Robert’s truck stolen, and the truck was later found in a church parking lot. Vest then posted on Facebook, in part, “[i]f it was stolen I don’t know but I do know my truck was and yes Zerlie Charles had everything to do with it that’s facts.” Eleven people “liked” the post and eight people posted comments in response.
The Court of Appeals in Charles held that, “the message constituted a communication with defamatory imputation, such as criminal conduct.” This message constituted defamation per se.
The social media post in Charles is not too dissimilar to what we see in family law matters from our clients and other parties. Many clients claim they have the right to say what they want. This case establishes that they do not. At least not in the way that defames another.
What can we take away from this ruling? It is imperative that we educate clients on their social media habits and what consequences their posts have on their cases and on their children (these children will one day be old enough to read these posts after all). I already have a clause in my engagement letter warning of the perils of social media. I’ll be adding a section about defamation as soon as possible. The Charles case is a needed reminder that what we do in the family law realm and what our clients do on social media have real-world consequences for them elsewhere.