Family law and social media: People’s use of social media during divorce or court parenting proceedings is in the spotlight after a game-changing “landmark ruling” in the US state of Massachusetts. A divorcing father there had been making negative posts about his ex-wife and their parenting dispute on social media until a family court banned him from making such posts. However, that ban was overturned by a Supreme Court in Massachusetts on the grounds that preventing the father’s freedom of speech in this way was unconstitutional. While the situation is different in Australia, given we have very different Constitutions and family law legislation, it’s still worth taking a look at the US ruling.
In the US, so-called “involuntary non-disparagement orders” are similar to the non-denigration orders that are routinely included in Australian family court judgments. Here, non-denigration orders usually take the form of something like:
“Each party is restrained from denigrating or criticising the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.”
Such non-denigration orders are then often accompanied by orders also explicitly restraining exes from publishing commentary, photos and videos about their dispute on social media.
This is almost superfluous as parties to family law proceedings in Australia are already forbidden by law from publicly discussing any aspect of their family law case which may identify their children. The aim is to protect children from being exposed to and negatively impacted by the acrimony between their parents.
Both here and in the US, breaching court orders is regarded as serious and carries the potential for harsh penalties. For example, an Australian father who created a Facebook page about his family law matter was prosecuted in the courts and was required to enter into a good behaviour bond for nine months as a result.
Of course, the glaring difference between the situation in Australia and the US is that the US Constitution’s First Amendment protects free speech, whereas Australia’s Constitution has no such equivalent. Nor is there any Australian Commonwealth legislation that enshrines a general right to freedom of expression. While Australia is a party to seven core international human rights treaties, including the right to freedom of opinion and expression (in articles 19 and 20 of the International Covenant on Civil and Political Rights), that right is limited to protecting political speech from criminal prosecution.
In fact Australia is subject to a range of laws that restrict free speech, such as defamation laws, hate speech laws, sexual harassment laws, ‘revenge porn’ laws and laws against threatening others.
But the US matter has caused a ruckus because of the way free speech is regarded almost as sacrosanct there. The Massachusetts judge said:
“’As important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of restricting speech”.
After the Supreme Court ruling, the Massachusetts father promptly resumed his negative postings (calling his ex an “evil liar” and so forth), because now “there’s nothing that stops him”, said the ex wife’s attorney, who nevertheless himself admitted the decision was “constitutionally sound”.
Commentators in the US fear the ruling will have implications for other states there, and question whether this will simply “give licence to a lot of bad actors to say what they want”. But others hope that warring exes will have enough common sense to come to a mutual agreement not to disparage each other, for the sake of the kids. And the Supreme Court noted that denigrated exes still have other remedies, such as suing for defamation or seeking a harassment prevention order. But do those remedies adequately shield children from the negative consequences of the exposure of their parents’ conflict?
In Australia, as we mentioned, children are shielded by the family law legislation that prohibits parents discussing their court case publicly or identifying the children involved. Further protection may occur through non-denigration clauses in orders.
Ultimately, the US case serves as a useful reminder to co-parents everywhere to fully consider the potential ramifications—personal and legal—of a decision to publish disparaging commentary about their ex online.
Source: NY Times
If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.