A recent story through ABC’s Good Morning America website highlighted the evolution of the prenuptial agreement in the social media age. Divorce lawyers are reporting an increasing amount of requests for language in prenuptial agreements – if not stand-alone agreements – addressing social media usage.
It makes a lot of sense. In an age where nothing ever really seems to be removed from the internet, protecting one’s privacy or “personal brand” on social media is a major personal and professional priority. People have been fired from their jobs due to content someone posted about them online; personal and professional reputations have been tarnished over embarrassing photos.
The concept of this clause does raise some intriguing legal issues. First, your ex-wife posting an embarrassing photo of you is not going to be defamation per se; after all, it is difficult to assert she is lying when the photographic evidence speaks for itself. Secondly, how can financial damages even be measured for someone posting on social media? Unless a job is lost or there is a concrete connection between the posted content and the outcome, I think a person calling “foul” over their ex-spouse posting photos will have a difficult time proving they lost income.
The way to give such an agreement “teeth,” therefore, is to provide for a defined financial sanction against the posting party. One attorney in the story suggests that the sanction should be relative to the earning power of the violating party and apply to each incident in which barred information was published. Practically speaking, the sanction has to be great enough that neither party will feel that the personal satisfaction of humiliating their former spouse outweighs the financial penalty.
I would think such an agreement, however, would need to carve out an exception for trial evidence or at least be narrowly tailored to the dissemination of information through social media platforms. Pictures and video acquired during the marriage can be a valuable resource for the corroborating behavior or actions of a party; it can provide important, admissible evidence. A blanket prohibition of the dissemination of pictures or video could undermine their application at trial and would certainly be subject to a discovery motion as to whether the agreement precluded the use of information at trial or, merely, the use of such information on social media. I would be surprised if people – particularly if they plan to have children – would want to prospectively preclude the introduction of certain types of evidence which may be relevant at a custody trial. An exception for the use of such media evidence at trial or, possibly, an agreement that such evidence would be viewed by the judge “in camera” (i.e. not in open court) could also help address the sensitive nature of the evidence.
It is axiomatic that technology changes faster than the court system can keep up. Private agreements, however, can mirror the shifting landscape of technology and privacy. Expect to see greater creativity in prenuptial and post-nuptial agreements dealing with this and other technologically based issues.
(picture credit: celeritystaffing.com)
Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org, and on Twitter @AaronWeemsAtty