May 11, 2020

Does a Court Order Barring Facebook Posts During Divorce Infringe Free Speech?

Butchart v Pannell, 2019 BCSC 599 (CanLII)

In Butchart v. Pannell 2019 BCSC 599 Mr. Pannell complained to the court of his wife’s Facebook posts where she referred to him as a “deadbeat dad” and aired their divorce issues, arguably undermining his reputation and contributing to his stress.

The court remarked that Ms. Butchart showed little insight into the negative impact of the posts, her solution was to tighten her privacy settings so her husband would no longer be able to read her disparaging missives. She further defended her position by saying there was no court order preventing her from talking about her case.

The parties had two children, ages 11 and 9. The court held that the posts were not in the children’s best interests, and barred Ms. Butchart from posting comments about Mr. Pannell or her children’s counselling on Facebook or any other social media.

I have yet to see a challenge to this type of order based on constitutionally protected free speech, however, the Massachusetts Supreme Judicial Court, sitting with seven judges, recently released an appeal decision declaring that an order limiting a litigant from posting comments, photos of his children, or other information regarding the parties’ divorce litigation online was an “impermissible restraint on speech”. Shak v. Shak SJC #12748 May 7, 2020.

The appeal court said:

“As important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of restricting free speech.”

The judges noted that there was no evidence that the Shak’s child had been exposed to, or would even understand the speech that gave rise to the non-disparagement orders as the child was too young to read or access social media. The concern about future harm if the child were to later discover the posts was speculative and could not justify a restraint on speech, they said.

“Harm to the child should not be simply assumed or surmised; it must be demonstrated in detail”.

In conclusion the court suggested that judges could make it clear to parties that their behaviour, including intemperate social media postings, may impact child custody determinations and that the best outcome was to rise above acrimonious feelings and simply refrain from making disparaging remarks.

The Massachusetts’ court determined that platitudes about “the best interests of the child” were not sufficient to undermine freedom of speech.