A parent can be ordered by means of a temporary injunction to refrain from posting details of family life on Facebook and to remove associated comments from other users, as the Supreme Court has now ruled in its decision on 7 Ob 197/21b.
The marriage of the ex-spouses was divorced by mutual consent in 2014. In the divorce settlement, it was agreed that both parents would continue to have joint custody of their three children. The mother’s place of residence was determined as the main place of care and the father was granted a 14-day right of contact.
The father ultimately did not return the children to the mother after the vacation contact at the end of July 2020 and applied for sole custody to be transferred. Since then, custody proceedings regarding the main place of residence and the right of contact have been pending.
The guardianship court upheld joint custody, determined that the children’s main place of care was with the father and granted the mother an accompanied right of contact. The mother then published a Facebook post in which she described the family situation and accused her ex-husband and the father of the joint children of alienating the children from her and made allegations about his “negative motivation”. Numerous other users left publicly visible comments under this post, also attacking the father and his parents.
The father, his parents and the children then applied for a temporary injunction prohibiting the mother from posting circumstances from their shared family life on Facebook and ordering her to delete the corresponding comments.
The Supreme Court weighed up the personal rights of the applicants against the mother’s right to express her opinion and ruled that the personal rights of the applicants took precedence. The mother’s sole aim was to create a negative atmosphere against the applicants and the guardianship court, and she was therefore not contributing to a discussion of general social interest. There was also a risk of repetition, as the mother assured her ex-husband via WhatsApp that the public would find out about his actions.
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