Vardags Family Law Essay competition 2024/25 | Winning Essay

The Legal Implications of Influencers’ Family Content in Divorce

Author: Olakunbi Adigun – Cardiff University

The growing influence of social media and the monetisation of family content have transformed the landscape of family law in England & Wales. Influencer families, who create and profit from digital content featuring their lives, face unique challenges during divorce proceedings, as courts must navigate the legal implications of digital assets, children’s welfare, and privacy concerns. Family content, including social media accounts, sponsorships, and revenue streams, may be considered marital assets, complicating asset division. Additionally, the inclusion of children in such content raises questions about consent, privacy, and the long-term impact on their welfare. This essay explores the legal implications of influencer family content in divorce, focusing on family content as a marital asset, the rights and welfare of children, and privacy and content ownership post-divorce.

Family content as a marital asset

The monetisation of family content through social media has introduced a novel class of marital assets, complicating divorce proceedings. Under the Matrimonial Causes Act 1973, financial assets accrued during the marriage are typically considered matrimonial property, to be divided equitably upon divorce. However, the emergence of digital assets, including social media accounts, platform-generated revenue, and sponsorship deals, challenges the application of these traditional principles, as such assets are intangible, fluctuating, and often deeply personal in nature.

Social media accounts often act as both personal platforms and business ventures, particularly for influencer families. Revenue generated from these accounts—whether through platform payments or third-party sponsorships—can hold substantial financial value. Under English law, such earnings, if accrued during the marriage, are likely to fall under the scope of Section 25 of the Matrimonial Causes Act 1973, which emphasises fairness in the distribution of marital property.

Valuation, however, presents a significant legal challenge. Unlike traditional assets, the worth of a social media account depends on variables such as follower count, engagement rates, and potential for future income. For instance, a family-focused YouTube channel with one million subscribers may generate thousands of pounds monthly, yet its future earnings are contingent upon continued content creation. This raises questions about how courts should account for speculative future income during asset division. While case law addressing such issues is limited in England & Wales, analogous disputes over intangible business assets, such as White v White [2000] UKHL 54, may provide some guidance. This landmark case emphasised the importance of fairness and recognised the contributions of both parties to marital success, including non-financial contributions.

The question of contributions is particularly pertinent in the context of influencer families. While one spouse may appear on camera as the face of the brand, the other may contribute equally by managing logistics, filming, editing, or coordinating sponsorship deals. Under the principles outlined in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, non-financial contributions are recognised as part of the marital partnership and should factor into financial settlements. This principle suggests that spouses involved in behind-the-scenes roles should have a claim to the digital assets generated during the marriage. In practice, disputes over digital assets may arise if one spouse retains sole access to social media accounts post-divorce, effectively gaining exclusive control over future income streams. For example, in hypothetical scenarios where family vloggers divorce, the spouse with account credentials could unilaterally monetise past content or pivot the brand, undermining the other spouse’s contributions.

Despite the relevance of existing principles like fairness and recognition of contributions, family law in England & Wales lacks explicit provisions for handling digital assets. The Matrimonial Causes Act 1973, designed for a pre-digital era, does not account for the complexities of influencer income or the valuation of intangible assets. In cases involving intellectual property, courts often rely on expert valuations, as seen in Charman v Charman [2007] EWCA Civ 503, but these methods are not directly transferable to social media accounts, where value is tied to audience perception and engagement.

Furthermore, the division of digital assets raises questions about enforceability. If one spouse is granted partial ownership of a social media account or brand, how can courts ensure compliance with revenue-sharing agreements? These unresolved issues highlight the need for statutory reform to address the growing importance of digital properties in marital disputes.

In summary, while existing principles of fairness and recognition of contributions provide a foundation, the rise of monetised family content has outpaced current legal frameworks. Social media accounts and associated revenue streams must be explicitly addressed within family law to ensure equitable outcomes. By adapting statutory guidance to account for digital assets, courts can better balance the interests of all parties and uphold the principles of fairness and justice.

Children’s rights and welfare

The use of children in monetised family content raises significant legal and ethical concerns, particularly during divorce proceedings. English family law, guided by the paramountcy principle outlined in Section 1 of the Children Act 1989, places the welfare of the child as the court’s primary consideration in all matters. However, the intersection of this principle with the influencer economy presents unique challenges, including concerns about exploitation, consent, and the long-term impact on children’s well-being.

Children’s appearances in family content often serve as key drivers of audience engagement, making them central to the success of many influencer families. However, unlike child actors, who are protected by legal frameworks such as the Children (Performances and Activities) (England) Regulations 2014, children featured in social media content are not guaranteed similar protections. These regulations mandate licensing, time limits on work, and safeguards for earnings, yet they do not apply to the informal and unregulated nature of influencer content creation.

The issue of consent is particularly troubling. While children may appear to participate willingly in content, their capacity to fully understand the implications of their digital footprint is limited, especially at younger ages. Courts must consider whether continued inclusion of children in monetised content post-divorce aligns with their best interests. For instance, one parent may argue for the cessation of such content to protect the child’s privacy and mental health, while the other may advocate for its continuation as a source of income.

Divorce proceedings often involve disputes over parental responsibility, as defined in Section 3 of the Children Act 1989. In influencer families, this responsibility may extend to decisions about whether children will continue to appear in content. Courts must weigh the potential financial benefits of such involvement against the risks of exploitation and harm.

For example, if one parent opposes their child’s participation in content, they may seek a prohibited steps order under Section 8 of the Children Act 1989 to prevent the other parent from including the child in videos or posts. Conversely, a parent in favor of continued participation may argue that the income generated directly benefits the child by contributing to their standard of living. Such cases highlight the need for courts to carefully balance the competing interests of parents while prioritising the child’s welfare.

The long-term impact of featuring children in monetised content remains an area of growing concern. Studies on children’s involvement in digital media suggest that public exposure at a young age can lead to privacy violations, cyberbullying, and identity issues later in life. These risks may be exacerbated during and after divorce, when parental disagreements over content could result in inconsistent messaging and heightened public scrutiny. English family law emphasises the importance of stability and continuity for children during divorce, as noted in Re B (A Child) [2009] UKSC 5. If the inclusion of children in content disrupts their sense of security or subjects them to additional stress, courts may consider limiting or prohibiting such involvement. Additionally, legal reforms akin to the Coogan Law in California, which mandates trust funds for child actors, could be introduced to protect the earnings of children featured in influencer content, ensuring that they benefit directly from their participation.

The welfare of children featured in monetised family content must be central to any legal determinations in divorce proceedings. By applying the paramountcy principle, courts can address issues of exploitation, consent, and long-term impacts, ensuring that decisions align with the best interests of the child. However, the absence of specific regulations for children in influencer content highlights a critical gap in English family law, underscoring the need for legislative reform to safeguard children’s rights in the digital age.

Privacy and post-divorce content ownership

Under English law, assets acquired during the marriage are typically treated as matrimonial property and subject to equitable division (Matrimonial Causes Act 1973, Section 25). However, determining ownership of social media content is complicated by its intangible nature and the collaborative roles often played by both spouses. For example, one spouse may have been the primary content creator, while the other managed production, editing, or sponsorship negotiations.

In such cases, courts must decide who retains control over social media accounts and whether one party is entitled to a share of future revenue generated from past content. Analogies can be drawn to intellectual property disputes, where courts consider contributions to the creation and commercialisation of an asset. The principles established in Oxonica Energy Ltd v Neuftec Ltd [2008] EWCA Civ 856, which addressed disputes over rights to intellectual property created collaboratively, may provide guidance. However, without specific provisions for digital assets, these determinations remain uncertain and inconsistent.

The continued use of family content post-divorce raises significant privacy concerns, particularly when it involves children. While the General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018 offer protections for personal data, their application to monetised family content remains unclear. Parents who use their children’s likeness in content effectively control their personal data, yet disputes over this control may arise following divorce.

For instance, one parent may object to the continued public use of their child’s image, citing concerns about privacy or mental health. Such objections could lead to applications for a prohibited steps order under Section 8 of the Children Act 1989, restricting the other parent’s ability to include the child in future content. Courts would then need to weigh the child’s best interests, the right to privacy under Article 8 of the European Convention on Human Rights (ECHR), and the financial implications of limiting content creation.

Case law in England & Wales offers limited guidance on the division of reputational assets, but parallels can be drawn to disputes over goodwill in business partnerships. Courts may consider factors such as the original purpose of the content, the contributions of each party, and the potential impact of rebranding or content removal on future income.

The lack of specific legal frameworks addressing the ownership and use of social media content post-divorce highlights a critical gap in English family law. Current statutes, including the Matrimonial Causes Act 1973, were not designed to handle disputes involving intangible, digital assets that continue to generate income after a marriage ends.

Proposals for reform could include statutory guidelines for dividing digital assets, as well as clearer protections for privacy in the context of monetised family content. For example, a requirement for written agreements between spouses regarding the future use of shared content could help prevent disputes and protect the interests of all parties, including children.

Post-divorce disputes over privacy and content ownership reflect the unique challenges posed by the influencer economy. While existing principles of asset division and privacy rights provide a starting point, the absence of specific legal frameworks leaves courts to grapple with these issues on a case-by-case basis. Legislative reform is needed to address the complexities of digital assets, ensuring fair outcomes while safeguarding the privacy and rights of all involved.

conclusion

The rise of influencer families has highlighted gaps in English family law, particularly regarding the treatment of digital assets, children’s welfare, and privacy in divorce. While existing laws offer some guidance, they fail to address the complexities of the influencer economy. Legal reform is needed to provide clearer guidelines for asset division, protect children’s rights, and ensure privacy in the digital age. Without such reforms, the legal system risks being inadequate in addressing the challenges posed by monetised family content.

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Bibliography

Legislation

1. Children Act 1989
2. General Data Protection Regulation (GDPR)
3. Matrimonial Causes Act 1973
4. UK Data Protection Act 2018

Case Law

1. Charman v Charman [2007] EWCA Civ 503
2. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24
3. Oxonica Energy Ltd v Neuftec Ltd [2008] EWCA Civ 856
4. Re B (A Child) [2009] UKSC 5
5. White v White [2000] UKHL 54

Secondary Sources

1. Department for Education, Children (Performances and Activities) (England) Regulations 2014
2. European Court of Human Rights, Article 8, Right to respect for private and family life
3. West, J., & Lewis, J. (2021). "The Digital Child: Risks and Rights in Online Spaces." Journal of Child Welfare Studies
4. Smith, K. (2020). "Influencer Marketing and the Law." Digital Economy Law Review