Can a woman limit her ex-partner’s use of social media?

UPDATED (June 2017) Use of social media has reached almost unbelievable levels. According to Facebook, more than 1.94 billion people around the world are active members, Twitter claims to have almost a billion accounts and there are 700 active users of Instagram. On top of that, 18.7 billion texts are sent worldwide every day.

While social media and electronic communication have enormous benefits, they carry with them the potential for misuse, especially in situations where one person wants to embarrass, intimidate or harass another.

Not surprisingly, this kind of misuse of technology rears its head in situations of violence against women. An abuser, even with minimal tech savvy, can, among other things:

  • Post compromising photos of his former partner on Facebook or Twitter
  • Use social media to spread untrue allegations about his former partner; for instance, claiming she is a bad mother or is a drug user
  • Use text messaging to harass and intimate his former partner

There are steps a woman can take to maintain her privacy online and to use social media in a defensive way.

Separation agreements

Upon separation, a women might want to consider having a clause about the use of social media written into a separation agreement or court order (or, if she is at the beginning of a relationship, into a cohabitation agreement or marriage contract). This clause would serve as a legal prohibition on either party using the internet for damaging posts about the other.

In a separation agreement, the two people could agree that they will not post anything negative about the other online and will not disseminate photographs, emals, texts or videos electronically by or from the other without prior written consent.

Here is sample wording for such a clause:

“All information that may in any way disparage, harm, cause to lower the other’s self-esteem, negatively affect the other’s public image or have any negative effect on the other person’s business, school or career prospects will be deemed protected information that will not be disseminated without prior, written and/or electronic consent. The parties will not:

  • Disclose directly or indirectly or cause or induce the disclosure of any information, pictures, posts, comments
  • Remove, reproduce, summarize, copy, excerpt, distribute, sell, exploit of use in any manner whatsoever

Any protected information that has been provided to them by the other party.

Protected information shall include, but not be limited to, information concerning the other party’s personal and business activities; legal and financial affairs; physical health; sexual activities; philosophical, spiritual or other views; characteristics; whereabouts; any and all photographs, likenesses, tapes, films, videos or audio and other recordings (including negatives, prints or copies thereof) of or by the other party; and any emails, texts or other forms of written communication about or from the other party.

Under no circumstances will the parties divulge any protected information for any means or through any media whatsoever, including, but not limited to, photographs, video, blogging, texting, “tweeting,” “tagging,” or posting any such protected information on any social media site, service or platform, including, but not limited to, Facebook, Instagram, Twitter, LinkedIn, All protected information shall remain the other party’s sole and exclusive property.”

From “Social Media Clauses in Pre-Nups, Custody Agreements and Orders of Protection
by Sherri Donovon, posted December 30, 2015

If a woman has concerns that her former partner might inappropriately post or disseminate photos, videos or information about their children, she could address this in a separation agreement or through a court order. In this instance, the clause could include a penalty that any violation of the conditions permits the mother to limit or prohibit access and to request that future access be supervised.

A woman seeking a restraining order could request that it specifically address communication through social media.

Family court decisions

There have been some family court decisions in Ontario that address the inappropriate use of social media by an abuser to harass and/or intimidate his partner.

One notable decision in this area is Menchella v Menchella 2012 ONSC 6304. In this case, the wife applied for an order for exclusive possession of the matrimonial home. The father had been sending her verbally abusive text messages, which she wanted the court to consider in making its decision. The court did so, and in her decision, Madam Justice McGee said, in part:

Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation of the usual analysis . . . violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behavior and impinges on her mental and physical health, violence has been done to her as surely as if she had been struck by a physical blow . . .

Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare or coerce without making disclosure.

There can be no doubt that the vitriolic communications constitute “violence” They are threatening, intimidating and were intended to be taken seriously. They occurred over the course of a full week, and were not provoked in any manner by the mother. A reasonable person could not view the father’s texts as either jestful or ambivalent.

In Perks v Lazaris 2016 ONSC 1356, Justice McGee make reference to a previous order from the motions judge which prohibited the parents from using social media to disparage one another.

In other situations, judges have chosen to warn rather than create a prohibition. In Emmerson v Emmerson 2014 ONSC 2780, Justice Valles noted that she had explained to the mother that her use of social media was inappropriate and said that she was “satisfied that the mother will conduct herself appropriately going forward, and that an order regarding these issues is not necessary.”

Justice Minnema commented on the harm that malicious use of social media can have in the case of Gregoire v Philion 2013 ONSC 7560:

It is very difficult if not impossible to defend against such allegations made in social media, or to get the offensive material removed. Ms Gregoire is very concerned, rightly so, about the permanency of such postings and that the children could at some point in their internet searches view this very inappropriate material that identifies them and their caregivers.

Criminal law

The Criminal Code was recently amended to include a provision, found in section 162.1, making it a criminal offence for someone to publish, distribute, transmit, sell or make available an intimate image of another person if that person has not given consent.

“Intimate image” means any kind of visual recording (photographic, film or video) in which the person is nude, exposing “his or her genital organs or anal region or her breasts” or is engaged in explicit sexual activity, if the person had a reasonable expectation of privacy when the recording was made.

This is a summary conviction offence that carries a maximum penalty of 5 years’ imprisonment.

 

Posted in Case law, For service providers, For women Tagged with: , , ,