Scrolling through any Instagram or Facebook feed today, it is not uncommon to see pictures of children accompanied by an endearing story, a life lesson, or a big milestone.
Some posts contain the child’s name with a harmless anecdote about a new interest or a recent adventure. Others contain lifestyle or parenting tips.
Come early September, when back-to-school season is in full swing, social media are filled with images of smiling children holding black chalk boards reading something like: “Emily’s first day of 1st grade. Central Elementary School. Ms. Smith. Likes: puppies. Dislikes: tomatoes.”
Today’s generation of children will grow up with social media as a regular presence in their lives, and they may have a social media presence of their own from birth, well before they have the capacity to shape that presence.
A study in 2010 showed that more than 90 percent of 2-year-olds and 80 percent of babies in the U.S. had an online presence.
What Is ‘Sharenting'?
The use of parental social media to share information and photos about children has become known as “sharenting.”
While well-intentioned, the use of social media to share updates or information about a child raises unique concerns about children’s privacy, boundaries, and safety that may come to the forefront in the context of divorce.
Divorcing parents may disagree about what information is too much when it comes to their children and social media. In the case of parental influencers, divorcing parents may object to the use of the child’s picture and information about the child to gain followers and make a profit. They may have concerns about shame or embarrassment the child may experience in adulthood from the wide distribution of these images.
For instance, while not a parental distribution, just this year the now-adult man depicted nude as an infant on the cover of Nirvana’s 1991 album
Nevermind sued the band for child sexual exploitation. In the suit, he alleged he suffered substantial emotional distress from having his image widely distributed well before he had any awareness of the impact.1
Safety Concerns
Other parents may have concerns for the child’s safety, given the prospect of “stranger danger.” This concern becomes far more prevalent when the parent is using the media to reach a larger audience. Whether for influencing or self-help purposes, such an intended audience would lead that parent to select few, if any, privacy restrictions.
These safety fears are not unfounded. Recent advice from law enforcement is to keep back-to-school photos basic. Police warned that disclosing a child’s school could allow a person to locate the child and use seemingly basic information or facts from parental social media to convince the child that he or she is a trusted adult known to mom or dad.2 Images of a child shared online could also be altered and redistributed in dangerous online channels.3
Sharenting and Limits on Parental Speech
So what can divorce attorneys do when a client disagrees with his or her co-parent when it comes to sharenting?
This specific issue has not yet been considered by Wisconsin appellate courts, but cases from other jurisdictions considering other speech restrictions, such as parental non-disparagement clauses, may be informative.
These cases bring to the forefront limits on parental speech.
Jurisdictions are largely split on the permissibility of non-disparagement clauses as restraints on speech. Some jurisdictions hold that such clauses are permissible, in part because the best interests of the child are a compelling state interest.4
Other jurisdictions have found such clauses violate First Amendment rights, although they make a clear distinction between non-disparagement clauses that are court-ordered, and those that arise by agreement of the parties that are later confirmed as a court order.
A case out of Massachusetts,
Shak v. Shak,5 is a commonly referenced case on the side of rejecting parental disparagement clauses as an impermissible prior restraint on speech. In
Shak, the court rejected a parent’s attempts to enforce a court-ordered restriction on disparagement of the other parent. In doing so, however, the court clarified:
that there are measures short of prior restraint available to litigants and judges in which disparaging speech is a concern. For example, our ruling does not impact non-disparagement agreements that parties enter into voluntarily.6
The Arizona Court of Appeals in 2013 considered a case specifically addressing parental disparagement through social media. In
Nash v. Nash,7 the parents entered a joint custody agreement that included their agreement not to disparage each other to the children. On the day of the divorce, the mother sent a series of tweets that called the father’s integrity into question. While the mother claimed First Amendment protections, the court rejected these claims, in part because the court entered the order at the request of the parents and both parents agreed to restrict their own speech.
Approaching the Issue
Divorce attorneys may consider approaching this issue proactively. Because court-ordered parental non-disparagement clauses do not always withstand First-Amendment scrutiny unless such clauses were an agreement of the parties, addressing this issue
before a judgment is reached could be beneficial if a parent's social media activity elicits concerns.
This is not unlike other issues arising in divorce that Wisconsin courts themselves cannot independently order but can order and later enforce as an agreement of the parties. This is common with nonmodifiable limited-term maintenance, the use of a parent coordinator, payment of expenses for adult children, or life insurance beneficiary designation to secure child support payments.
Parents, with the assistance of counsel, may be able to negotiate an agreement on restrictions for distribution of the children’s images and information about them that the court may enforce should “sharenting” take a turn for the worse.
For instance, parents may agree to include provisions in their marital settlement agreement, providing something to the effect of:
neither parent shall post any information identifying the location of the minor children on any social media page; the parents further agree neither parent shall post any images showing the faces of the minor children unless the parent’s account has privacy restrictions limiting access to friends, followers, or the like.
Likewise, parents could also take the advice of child privacy advocates in agreeing they will seek consent of the minor child before posting any pictures or other information. However, enforcing such a provision through contempt proceedings may prove aspirational.8
With the rise of social media and influencer culture, these issues will continue to evolve.
This article was originally published on the State Bar of Wisconsin’s
Family Law Section Blog. Visit the State Bar
sections or the
Family Law Section webpages to learn more about the benefits of section membership.
Endnotes
1See Mark Savage, “Nirvana sued by the baby from Nevermind’s album cover,”
BBC News (Aug. 25, 2021).
2See “Police Ask Parents to be Cautious with ‘First Day of School’ Pictures,”
WBAY.com (Aug. 26, 2021).
3See Stacey B. Steinberg, “Sharenting: Children’s Privacy in the Age of Social Media,” 66
Emory L.J. 839, 850 (2017).
4See, e.g., Wedding v. Harmon, 492 S.W.3d 150, 155 (Ky. Ct. App. 2016).
5Shak v. Shak, 144 N.E.3d 274 (Mass. 2020).
6Id. at 280.
7Nash v. Nash, 307 P.3d 40, ¶29 (Ariz. Ct. App. 2013).
8 Steinberg, at 881.
