Protecting Children's Right's Right to Privacy in the Digital Age: Parents as Trustees of Children's Rights
Sustainable Development Goals: 9
- SDG 9 - Industry, Innovation and Infrastructure
In this academic piece, author Shannon Sorensen explores what the expansion of digital technologies means for the future of children's rights and parental relationships with their children.
Parents who post about their children online are hard pressed to view themselves as a threat. The constant stream of photos and videos is a public display of love and pride for their little ones. But the simple fact is that parents post photos of private moments with their kids all the time without their children's permission. While it is uncomfortable to point the finger at parents as compromising their children's rights, it is time to consider how we might protect children's privacy from even loving parents because even the most well-intentioned parent may be unknowingly compromising the autonomy of their child. The advent of social media has led to a new frontier in individual privacy, particularly so for children, whose appearance on social media is involuntary. Pictures that were reserved for the family photo album are now available to the entire online world through social media. Most people post about their own lives and it is common for parents to post about their children. Academic discourse has not yet addressed the question of whether children have a right to choose online publicity or anonymity. Current discussions regarding children's privacy rights in social media center around two ideas: protecting children from online predators and the right of older children to interact online free from parental intrusion. Scholars have addressed the question of whether parents have a right to monitor their children's activity online and many advocate that doing so protects children's safety. 2 Some argue for increased protection of the right of parents to raise their children, free from unnecessary state intervention that results when law enforcement agents or government officers discover questionable photos posted online and take them out of context.3 Numerous resources promote increased parental responsibility and restraint in what they post online to protect their children from online predators. 4 But no scholars have engaged the next important step in the area of children's privacy online: privacy for its own sake. This Article aims to address how parents might be jeopardizing the privacy rights of their children by posting about them without their consent, or how they might be infringing on their child's ability to create and shape their own image, and presents a theoretical paradigm through which we might better achieve children's privacy interests online. Around the twentieth century, there was a gradual shift from a property view between parents and children towards a concept of parents as trustees of their children's best interests.5 This shift was beneficial, though only partial: theoretically analogous treatment of children and property still underpin much of the current discussion around children's rights. 6 The next step in this shift is a new theoretical approach: set the analysis of balancing children's right to privacy against their parents' right to parentage and free speech against the backdrop of parents as trustees of their children's rights. This requires examining the continuing impacts of the property paradigm and replacing it with the modem view of children as individuals with rights that deserve protection even from their parents. In this Article, I revisit the question that Warren and Brandeis first presented in 1890 in their well-known Right to Privacy article: "whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is," 7 and specifically answer it in terms of what protections are afforded to children's right to privacy. Part I will discuss the impact of the advent of social media on privacy in general and its specific impact on children. Part II will follow the analytical framework presented by Warren and Brandeis, first examining the principles contained in existing law which can be invoked to defend children's rights to privacy in social media, then discussing how to apply and adapt the fundamental underlying principles to better protect children's rights to privacy.