Posting photos of our children on Instagram or Facebook is not unusual. Photos of your children having fun during holidays, at barbecues or at parties. How nice is it to share these with all the people you know and love? However, as a parent in a divorce situation, you should ask yourself if this is a wise thing to do.
In several divorce cases, one of the parents has objected to the spread of photos or videos of the children via social media. This parent therefore asked the court to give judgment on this point. How do judges decide in these cases?
In a case that was treated last year by one of the Courts of Appeal here in the Netherlands, a mother was forbidden to post photos and videos of her child on the internet via social media. She also sent photos of her child to her friends via WhatsApp. The father, who had no problems with the photos shared on WhatsApp, stated that he was afraid that the photos of the child posted on Facebook and Instagram would be used or spread (by others than the mother) via the licence system of these companies.
In the terms and conditions of Facebook it is stated that:
Content: You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition: 1. For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. (…).
The previous text means that when you share a photo on Facebook, you give permission to Facebook to save, copy and share the photo with others (in accordance with your application settings).
In the terms of use of Instagram it is stated that:
Proprietary Rights concerning content on Instagram: Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will not be distributed outside the Instagram Services.
In the terms of use of Instagram it is also stated that you can terminate the license by removing your account, but that the content will still be shown if the content has been shared with others and these people have not removed the content.
The mother stated that posting photos via WhatsApp has the same effect as posting photos on Facebook and Instagram. The Court of Appeal did not agree to that and gave judgment in favour of the father. The Court of Appeal made clear that the difference between posting a photo via WhatsApp or via Facebook or Instagram is that, when a parent shares a photo via WhatsApp, a contact of the parent has to spread this photo actively, while by sharing a photo via social media a parent gives permission to Facebook or Instagram to use the photo at their own discretion.
According to the Court of Appeal, sharing a photo of your child via social media is not in the interest of the child. Also, the Court deemed the age of the child important. This child was only six years old and was not yet aware of the privacy aspects of social media and the consequences of sharing photos on Facebook or Instagram. Therefore, the mother was forbidden to post any photo for a period of five years, unless both parents would agree otherwise.
The Court also advised both parents to guide their child in the process of using social media and to carry out the same message towards the child regarding this topic.