Should Court Stop Dad From Posting Pictures of Child on Facebook?
In a recent Ontario decision called Rego v. Santos, the court had to grapple with a very modern-day issue: whether to prohibit a father from posting pictures of his child on the internet, in what was essentially a social media “publication ban”.
The parents of the now-four-year old child had never married; they met at work and by all accounts had an intermittent relationship. The mother claimed they were sexually intimate on only one occasion, and even denied the father’s paternity until she was reluctantly conceded otherwise based on paternity test results. The father, in contrast, claimed they had good rapport until a minor incident occurred which changed the mother’s disposition toward him. She thereafter made it clear that she wanted the father out of her life and away from the child, and eventually obtained a court order for sole custody, with specified access to the father. But when the father tried to exercise that access, he was refused and actively blocked in his attempts by the mother.
Against this background, the father applied successfully to have custody of the child himself, pointing to the mother’s obstructionist tactics respecting access, and her unwillingness to foster a relationship between the father and the child. The court granted the father’s application for a custody changed, and with access to the mother.
In the context of granting this order, the court entertained a complaint by the mother to the effect that the father had shown poor judgment in connection with this internet use; specifically that he had posted comments about and pictures of the child on Facebook, despite an earlier court order to the contrary. One of the posts included a comment by the father as follows:
To [my daughter] – my “angel”, 2 years ago I was the first to hold you, I was the first one to feed you. Today you turned 2 and although I am unable to see you and be there for you. One day you will ask why, and when that day comes, I will simply tell you to ask your mother. Just know this, I love you … Happy Birthday.
The mother objected on the basis that such postings were actually intended by the father to draw attention to himself, to portray the two parents and child as an intact family, and to garner sympathy for his family situation from other social media users.
In refusing to grant the mother’s sought-after publication ban, the court wrote:
The internet is a relatively new communication forum that does not have established rules of play. Users are on their own to show respect, accuracy and good grace in their publications. [The father] in the past demonstrated his great pride in his daughter that lead to postings of the child’s pictures. I think he could have been a little more tactful in his posted messages, but as just stated, there is a wide range of comments that can be made with impunity. Some people are concerned that children can be located by persons who wish to do harm. Care must be taken to avoid descriptive or locational information in pictures or messages.
[The mother] is a very private person, perhaps obsessively so. As she testified, only her closest friends even know about [the father] as [the child’s] father. The solution is for [the father] to be circumspect in his posted messages, and for [the mother] to be more tolerant of internet communication. I see no reason why [the father] should be interdicted from, or even regulated in his use of internet postings. The only harm I can see from postings would be an intrusion into [the mother’s] unreasonable demand for all-encompassing privacy. If he were allowed to do any postings even under court restricted conditions, my concern is that [the mother] would find fault, and require court attendances to allege contempt.
Another facet of [the mother’s] concern is that persons other than [the father] may make postings. The [mother] may believe the [father] is encouraging others to do so, but that is not probable. In any event, it is not possible for this court to require [the father] to control who else posts messages on the internet.
The court accordingly refused to grant an order restricting the father from posting pictures of family or comments on the internet, and vacated the earlier court order that had purported to prevent him from doing so.
What are your thoughts? Should courts issue a Facebook “publication ban” in high-conflict family law cases? Or in all cases?
For the full text of the decision, see:
Rego v. Santos,  O.J. No. 3341, 2014 ONCJ 330