It is not unusual for parties in high conflict divorce to use social media, such as Facebook, Twitter, or Instagram to gain support for their cause or vent their frustration with their spouse or the court system, particularly when children are involved.
In Butchart v. Pannell 2019 BCSC 599 Mr. Pannell complained to the court of his wife’s Facebook posts where she referred to him as a “deadbeat dad” and aired their divorce issues, arguably undermining his reputation and contributing to his stress.
The court remarked that Ms. Butchart showed little insight into the negative impact of the posts, her solution was to tighten her privacy settings so her husband would no longer be able to read her disparaging remarks. She defended her position by saying there was no court order preventing her from talking about her case.
The parties had two children, ages 11 and 9. The court held that the posts were not in the children’s best interests, and barred Ms. Butchart from posting comments about Mr. Pannell or her children’s counselling on Facebook or any other social media.
I have yet to see a challenge to this type of order in British Columbia based on constitutionally protected free speech, however, the Massachusetts Supreme Judicial Court, sitting with seven judges, released an appeal decision declaring that an order limiting a litigant from posting comments, photos of his children, or other information regarding the parties’ divorce litigation online was an “impermissible restraint on speech”. Shak v. Shak SJC #12748 May 7, 2020.
The appeal court 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 free speech.”
The judges noted that there was no evidence that the Shak’s child had been exposed to, or would even understand the speech that gave rise to the non-disparagement orders as the child was too young to read or access social media. The concern about future harm if the child were to later discover the posts was speculative and could not justify a restraint on speech, they said. The court also remarked that the “best interests of the child” was not sufficient to undermine freedom of speech.
“Harm to the child should not be simply assumed or surmised; it must be demonstrated in detail”.
In conclusion the court suggested that judges could make it clear to parties that their behaviour, including intemperate social media postings, may impact child custody determinations and that the best outcome was to rise above acrimonious feelings and simply refrain from making disparaging remarks.
However, social media postings that are defamatory will not escape sanction as seen in Rook v. Halcrow 2019 BCSC 2253 where Mr. Rook’s girlfriend, unhappy with their break-up, posted dozens of missives containing derogatory, inflammatory, abusive and false statements, posted on various websites, including badbizreport.com, cheaterreport.com, reportdeadbeats.com, datingcomplaints.com, and deadbeatregistry.com.
The statements were held by the court to be false and malicious and Mr. Rook, a well-respected businessman, suffered significant damage from his ex-girlfriend’s defamatory statements. He sued for general damages and aggravated damages and was awarded $175,000 and $25,000 in aggravated damages. He was also awarded the additional sum of $29,870 US to compensate him for the fees he paid to a reputation consultant to assist in having the postings removed.
Social media has serious implications for family law litigants. According to National Review, 81% of lawyers discover social networking evidence worth presenting in court as evidence against an opposing party. Evidence obtained online can make a difference in the outcome of a case and caution is advised.