What an be sweeter than a picture posted on social media by a proud parent of their child? Or a grandmother that posts a video of their grandchild? Even these simple actions can lead to conflict if one of the parents does not approve. In most cases, these conflicts arise after divorce. In this article we explore some recent examples of cases in The Netherlands where parents have been in conflict as to whether the child’s image or name may be posted on social media.
Posting pictures on social media by a parent
In a recent appeal case the mother asked for an injunction forbidding the father from placing photo’s of their daughter on social media. The lower court had refused the injunction. The appeal court ruled that parties had often used social media while they were still in a relationship. They also regularly posted photo’s of their daughter. As the mother could not identify what specific extra risks the child would be exposed to, the court refused the injunction to remove the photo’s. However, in the interests of the child, the court held that all photo’s needed to be restricted to friends or followers only.
Can a parent forbid others from posting pictures on social media?
In a another case, a mother asked fo an injunction forbidding the child’s grandmother from posting pictures of her grandchildren on Facebook and Pinterest. The court took a formal approach to the case. As photo’s are personal data, the court examined whether posting on social media was permitted based on GDPR (the European General Data Protection Regulation).
The children have a right to privacy and protection against unwanted data entering the public domain. The Dutch law implementing GDPR states that for publishing photo’s of children under the age of 16, permission is needed from their legal guardian. In this case neither parent had given permission. The grandmother was ordered to remove all photo’s from social media and forbidden to publish any more in the future.
There is an exception to this rule for personal or household use of material containing personal data. The grandmother would be allowed to send the photo’s to a friend. She would also be allowed to post in a small closed community such as a family Whatsapp group. When posting to social media, accounts are often unprotected and therefore the data can ‘leak’ into the public domain. In this case, it was unclear if the accounts the photo’s were posted to had restricted access or not. Friends only for example.
What if the other parent only mentions the child on social media?
In a contentious divorce, a father was given a contact ban for six months. After the ban was over, the mother took the father to court for unlawful Facebook messages about their son. At least, she saw them as unlawful. The father had posted that his son had not had any contact with his father for four years. In the same post he wished him a happy birthday as there was no other way to contact him. “When a mother refuses to communicate with the father and says the son “does not want contact”, it is just like her killing her child (in my opinion).” The post was accompanied by a link about identity denial.
In another post over six month later, the father dedicated a Youtube video to his “son”. The video was of an artist they used to listen to together.
The first post was still during the ban, the second after the ban had elapsed. The Amsterdam court held that the mother could not forbid the father talking in general terms about his son and attaching links that in themselves are not unlawful. The father’s Facebook account is set to private. That people who knew the parents would know who the father was talking about on social media does not warrant a ban or retraction. The court does remark that it is another matter whether it is wise of the father to post such messages.
This case is extreme in that there is obviously a deep conflict between the parents. It is unlikely that in normal circumstances a court would ban a parent from even mentioning a child on social media.
Some careful conclusions
It will often depend on the context within which messages are posted, whether they are acceptable or not. An important aspect seems to be whether the messages are public or not. If they are public, then the privacy of the child is likely to weigh heavier. Another aspect is whether social media was already present tin the life of the child. And lastly, frequency of posts will often be an important factor.
And, if you are not a parent, you will need permission from a parent to post photo’s of a child on social media.
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