In the recent decision of McBride v McBride [2024] NSWSC 45 (McBride), the Supreme Court of New South Wales considered whether the plaintiff's words in a video posted to multiple social media sites constituted a settlement offer. The Court found that although it is possible to use social media to make an offer, this particular video did not meet the threshold requirements for a settlement offer.

This article explores the factors considered by the Court in the McBride decision, and provides guidance regarding the current state of play for using social media as a platform for entering into agreements.

McBride involved a dispute between two siblings, Mr John McBride (the plaintiff) and Ms Catherine McBride (the defendant), regarding the provision of their deceased mother's estate. Ms McBride is the executor of her mother's will and was left the bulk of the deceased's estate, mainly constituting of an apartment in Neutral Bay, Sydney. Mr McBride's benefit comprised some personal items and around $10,000.

On 9 November 2022, Mr McBride filed a summons seeking an order under the Succession Act 2006 (NSW) that further provision be made for him from the estate. On 5 October 2023, the defendant, Ms McBride, filed a notice of motion seeking a number of orders on the grounds that Mr McBride had made an offer to settle the litigation, and she had accepted that offer. The offer was alleged to have been made by Mr McBride in a video which he posted on various social media sites on 17 August 2023.

Importantly, as at 17 August 2023, Mr McBride was a former military lawyer, facing charges in separate proceedings concerning the leaking of secret documents to the Australian press. He had a large social media presence (being somewhat of a "content creator") and was eager to amass funds for his defence, including via a "GoFundMe" campaign.

During the course of that video post, Mr McBride said the following:

"…My mother died a couple of years ago she left pretty much everything she owned a two-million-dollar apartment to my sister. Now obviously I need money for my case and I’m making a claim as you can do under the law to get some sort of provision, could be as little as $10,000 dollars, could be $1,000 dollars and my sister got the two-million-dollar apartment…"

Question Before the Court
The question before the Court was whether on 17 August 2023, Mr McBride made an offer to settle the proceedings when he posted a video on multiple social media sites.
The Court answered this question as no. The reasons for this decision are considered below.

Uncontroversially, the Court reiterated that it is an objective assessment whether an offer was made, meaning that any personal opinions of the parties are not decisive. In this context, the Court found that, on a proper interpretation, Mr McBride's words could not objectively be construed as anything more than a prediction as to the outcome of the separate proceedings against him. As a result, the video did not constitute an offer.

In reaching this decision, the Court identified a number of factors. These are summarised below as a helpful guideline when considering an offer in the context of video or social media recordings:

• that no specific words are used in the video which might be described as conveying an offer;

• that no overall message can be discerned from the whole of the video to suggest an offer of settlement is being made;

• there is no conduct, either before or after the video was posted, to suggest the plaintiff was making an offer, nor is there any history of dealings from which the making of an offer might be inferred;

• there is no suggestion that the words the video were addressed to the defendant;

• if the words were an offer, it would be a very strange offer, in that it is an offer to accept $1,000 or $10,000 or anything in between;

• the reference to $1,000 and $10,000 could not be seen as going beyond a prediction of what the outcome of the case might be; and

• the absence of any consideration of costs in the context of proceedings being on foot.

Although the video in McBride was found not to constitute a binding settlement offer, the Court accepted that it is possible to use a video posted to social media to make an offer.

It is not contentious that a legally binding offer can be made or accepted through a social media platform whether it be Instagram, Facebook, X (Twitter), or even emails and text messages. However, regardless of the source of the offer, basic elements of contract formation i.e. offer, acceptance, consideration, need to be satisfied for it to be binding.

When determining whether an agreement has been entered into, the court will also look at the commercial circumstances of the communications and may draw inference from the parties' words or conduct in making the agreement.

For example, in a recent Australian decision, ATL (Australia) Pty Ltd v Cui [2022] NSWSC 1302, the Court found that text messages which were sent via a social media platform named WeChat, which discussed the possibility of settling the dispute, did not create a binding agreement, as the parties had not agreed on all key terms of the bargain, and the circumstances indicated that the parties did not intend to be bound until the parties had reached an agreement.

With the rapidly growing number of "content creators", "influencers" and increase in the use of social media generally, it is important for those who have an online presence to be careful of any statements they make which could be construed as a contractual offer.

Kanye West, an American rapper, acts as a cautionary tale of how a social media post can have significant legal consequences. In 2016, Kanye West made a "tweet" that his upcoming album would only be available on the music streaming platform named Tidal, with the tweet stating "My album will never never be on Apple. And it will never be for sale… You can only get it on Tidal". As a result, a large number of fans subscribed to the platform in anticipation of the album release. However, a month or so after the album was released on Tidal, it was also made available on other streaming platforms such as Apple Music and Spotify. A class action lawsuit was brought against Kanye West and Tidal which alleged that Kanye's "tweet" was misleading and had tricked customers into subscribing to Tidal. The class action was subsequently settled for a whopping US$84 million.

Another interesting consideration is how the use of emojis or GIFs could be interpreted when used in commercial dealings. A Canadian court recently found that the "thumbs-up" emoji was as valid as a signature in demonstrating acceptance of contractual terms. While this decision is not binding in Australia, it acts as a caution to those who intend to enter into legal agreements to ensure that they use clear communication when being sent legal documents or responding to an offer.

A social media post on Facebook, Instagram, X (Twitter) or any other platform can form the basis of a legally binding agreement. Therefore, before you click "post", it's important to pause to consider how your content could be construed by the audience. McBride provides a useful example of the types of matters that a court will consider to assist with determining whether or not a legally binding offer has been made. In all cases, it is essential that the elements of a contract are met. However, this is not always as simple as you would think. Ultimately, it is important to remember that content posted to social media can form the basis of a binding agreement. So, be careful with those emojis - clear communication has never been more important!