Help! My ex-partner posts photos and videos of our child on social media without my permission. Can I do anything about it?

Using social media is an easy, fast and fun way to share information, photos and videos of a child with family, friends and others in one go. For many parents it is therefore common to share photos and/or videos of their child(ren) on social media, such as Facebook, Instagram or YouTube. Sharing photos and/or videos online is also called 'sharenting'. It is increasingly common for a parent to post photos and/or videos of the child on social media after a (divorce) divorce, while the other parent disagrees. What can you do in that case?

Joint authority

The starting point is that parents continue to exercise joint authority after a (legal) divorce. Joint authority means that the parents have decision-making authority over important decisions in the life of a minor child. Posting photos and/or videos on social media is such an important decision that parents must decide on together, because this decision affects the life of the child. This means that your ex-partner is in principle not allowed to post photos and/or videos of your child(ren) on social media without your permission.

What can I do?

If your ex-partner nevertheless proceeds to post photos and/or videos of your child(ren) on social media without your permission, then discuss this with him or her, with or without the help of a mediator. If you and your ex-partner cannot reach an agreement, then there is a so-called 'custody dispute'. In such a situation, the judge can be asked for a ruling. The judge will then assess the interests of the child.

Judge's statements

There are not many published rulings in which such a dispute between parents occurred. In the past three years, three cases have appeared in which the judge in all three cases came to the same ruling: the interest of the child outweighs the interest of the parent to post the photos and/or videos on social media without the other parent's permission.

The starting point in the three cases seems to be that a child should be able to decide for themselves about their privacy and should therefore be able to decide for themselves whether they want a photo of themselves on social media.

Due to young age, insufficient awareness of privacy and consequences

For example, in a case before the Arnhem-Leeuwarden Court of Appeal of 7 July 2020 a mother prohibited from posting photos and/or videos of the child on social media for 5 years, unless the father gives permission. The father argued that he was afraid that the posted photos of the child could be used and distributed without the parents' permission via the Facebook or Instagram licensing system. The Court agreed with him, because this indeed followed from the terms and conditions of Facebook and Instagram and also ruled that the child, given the young age, now six years old, currently has insufficient knowledge of the (privacy) aspects of social media and cannot (yet) understand the consequences of posting photos and videos on social media.

The Court understands that the mother is proud of the child and that she would like to share this with others, but according to the Court, posting photos and/or videos on social media is not the right way at this time, since the father does not consent to this.

Income through vlogging

In another case before the The Hague District Court of 1 October 2018 the mother had made vlogging her job and claimed to have a financial interest in posting images of the children online. The court ruled that she should stop posting photos and videos of her children on Instagram and YouTube. The father argued that he was afraid that the children could become the object of pedophilia or bullying.

The court ruled that the privacy of the children was at stake, because the mother posted the daily lives of the children on social media. Considering the age of the children, 4 and 2, the judge assumes that the children are not already consciously exposed to the bullying or ridicule by third parties that can be traced back to the vlogs, but that this could indeed be the case in the future. Therefore, the mother must delete all photos and videos of her children.

Private page with max 250 friends

However, the mother was not prohibited from posting any photos of the children online at all. She was allowed to post images, videos and messages on her personal internet pages, such as her Facebook page, as long as access to them was limited to 250 friends, family members and acquaintances. If the mother did not comply with this, she would be given a penalty.

Always need permission?

Although in most cases it is likely that it is not permitted to post photos and/or videos of children online without the other parent's permission, this does not always have to be the case. The outcome may be different if the parent who does not give permission also posts photos of the child online or if the parents also frequently posted photos online during the relationship. The case law will have to determine in which situations it is and is not permitted to post photos of children online.

Include agreements in the parenting plan

It is advisable to include agreements in the parenting plan at the time of the (divorce) about the use of social media in relation to your child(ren) and their privacy. Even after the (divorce) agreements about this can still be included in the parenting plan. When making these agreements, always put the interests of the child first.

Do you have a conflict with your ex-partner about the use of social media in relation to your child(ren)? Or do you want to include an agreement in the parenting plan about the use of social media? Then contact contact with our office. We will be happy to assist you.