BALTIC JOURNAL OF LAW & POLITICS
A Journal of Vytautas Magnus University
VOLUME 14, NUMBER 2 (2021)
ISSN 2029-0454
Cit.: Baltic Journal of Law & Politics 14:2 (2021): 101-122
https://content.sciendo.com/view/journals/bjlp/bjlp-
overview.xml
DOI: 10.2478/bjlp-2021-0012
CHILD RIGHT TO PRIVACY AND SOCIAL MEDIA – PERSONAL
INFORMATION OVERSHARING PARENTS
Anna-Maria Iskül
B.A. Graduate
Tallinn University of Technology, School of Business and Governance,
Department of Law (Estonia)
Contact information
Address: Akadeemia tee 3, Tallinn 12618, Estonia
Phone: +372 53422306
E-mail address: maria.kadastik@gmail.com
Kristi Joamets
Senior Lecturer, Ph.D.
Tallinn University of Technology, School of Business and Governance,
Department of Law (Estonia)
Contact information
Address: Akadeemia tee 3, Tallinn 12618, Estonia
Phone: +372 53422306
E-mail address: kristi.joamets@taltech.ee
Received: March 29, 2021; reviews: 2; accepted: December 30, 2021.
ABSTRACT
Many parents (over)share personal details regarding their children in social media
without thinking that this can negatively affect the wellbeing of their child and put him/her at
risk. Furthermore, parents forget that they are not owners of their children’s data but just the
legal representatives of the child with an obligation to act only for the best interests of the
child. A child’s right to privacy and the protection of his/her data is regulated in international,
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EU and national level, however, this is not enough to avoid malpractice of the data of a child.
This article analyses social media dangers and whether parental actions result in privacy and
online safety violations focusing on legal regulations and their interpretations in international,
EU and national level exploring child’s right to privacy, consent of the child and the right to be
forgotten.
KEYWORDS
Child and social media, child’s rights, data protection, oversharing personal data,
parental responsibility, right to be forgotten
NOTE
This article is based partly on the 1st and 2nd chapter of the graduation thesis of Maria
Kadastik “The Protection of the Children on Social Media: Fine as a Possible Solution to Personal
Oversharing” defended in January 2021 in Department of Law, School of Business and
Governance, Tallinn University of Technology.
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INTRODUCTION
The development of technologies plays an essential role in a child's life. Having
special status with more protection than others, it is important to analyse how
technology impacts these rights and how to protect such rights in the best possible
manner. The online future of children depends among other things on the actions of
the parents. Many parents (over)share personal details regarding their children
without thinking about the consequences for the wellbeing of a child and put their
children at risk. Private information about their children enters the digital space often
even before the birth of the child. Furthermore, parents forget that they are not
owners of their children’s data but just the legal representatives of the child with an
obligation to act only for the best interests of the child. This demands informed and
conscious parental participation when uploading the pictures of their children in social
media. However, it is not easy to understand the problem because it depends on too
many aspects. Thus, it is essential to analyse social media dangers and parental
actions with the data of their children to avoid their privacy and online safety
violations.
This article explores the legal aspects of children’s personal information
oversharing by the parents based on the international, EU and national (Estonian)
law, court cases, scientific literature and practice. This research analyses whether the
existing legal framework in all aforementioned levels of law is enough to protect the
privacy of children in the realm of social media in all of these levels dealing with
privacy, consent of the child and the right to be forgotten.
The article begins with a short introduction about how children are connected
to the internet and social media, how this can facilitate the offenses against children
and how a child’s right to privacy can be violated. The next chapter examines the
legal issues and viewpoints concerning the protection of child’s privacy in social
media, consent of the child and the right to be forgotten. In the conclusion the main
results are given with suggestions for what should be considered when developing
the policies, drafting the law and interpreting the current law to give a child better
protection in social media.
1. SHARING A CHILD’S INFORMATION IN SOCIAL MEDIA
There are many threats connected to social media. Every internet user falls
under the possibility of encountering various risks, but it is highlighted that children
are frequently initial targets of online criminals.1
Research shows that popularity and
1
INTERPOL, “Backing Safer Internet Day to promote online safety” (March 2020) //
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usage of social media grows with each passing year, the numbers are huge.2
That,
in turn, could be the reason why crimes against children are facilitated even more. It
is reported that ill-intentioned persons already gain easy access to data connected
to children, but various social media platforms also provide them with the possibility
to get in touch with their future victims directly.3
Consequently, when dealing with
questions of social media and children, it is fundamental not to overlook all the
associated dangers.4
The pattern of online crimes against children has always been similar. Different
surveys depict similar results. For example, a study about online threats encountered
by children showed that one of the occurring problems is connected to the strangers
who tried to approach children.5
Moreover, it is stated that such crimes are rising in
numbers because of the development of technology.6
Already in 1997, it was noted
that new appliances in the form of chunky desktop computers opened new
possibilities for online predators, who used new technology to contact the children.7
Some surveys conducted in the EU affirmed that crimes did make the jump from the
physical world to the cyber world. However, that research also noted that it is not
possible to grasp the real magnitude of the problem.8
According to the data of
UNICEF: “Some 80% of children in 25 countries report feeling in danger of sexual
abuse or exploitation online”.9
Often online dangers are caused by the behaviour of the parents by stripping
their children of privacy by oversharing personal information about their kids.
https://www.interpol.int/en/News-and-Events/News/2017/INTERPOL-backing-Safer-Internet-Day-topromote-online-safety;
Janis Wolak, David Finkelhor, Kimberly J. Mitchell, and Michele L. Ybarra, “Online
‘Predators’ and Their Victims. Myths, Realities, and Implications for Prevention and Treatment,” American
Psycologist (February-March 2008); Georgia M. Winters, Leah E. Kaylor, and Elizabeth L. Jeglic, “Sexual
offenders contacting children online: an examination of transcripts of sexual grooming,” Journal of Sexual
Aggression 23 (2017): 62-64 // DOI: 10.1080/13552600.2016.1271146; Richard Frank, Bryce Westlake,
and Martin Bouchard “The Structure and Content of Online Child Exploitation Networks,” ISI-KDD '10: ACM
SIGKDD Workshop on Intelligence and Security Informatics 3 (2010): 1 //
https://doi.org/10.1145/1938606.1938609.
2
See for example Dave Chaffey, “Global social media research summary 2019” (March 2020) //
https://www.smartinsights.com/social-media-marketing/social-media-strategy/new-global-social-mediaresearch/;
Simon Kemp, “Digital 2020: 3.8 billion people use social media” (Jan 2020) //
https://wearesocial.com/blog/2020/01/digital-2020-3-8-billion-people-use-social-media; Esteban OrtizOspina,
“The Rise of Social Media” // https://ourworldindata.org/rise-of-social-media.
3
“Social networks: the 5 most common dangers and which actions to take,” Digital Guide IONOS (Jan
2021) // https://www.ionos.com/digitalguide/online-marketing/social-media/social-networks-dangers-ofsocial-media/;
Georgia M. Winters, Leah E. Kaylor, and Elizabeth L. Jeglic, supra note 1: 62-64.
4
INTERPOL, “Keeping children safe online” (Dec 2020) // https://www.interpol.int/en/Crimes/Crimesagainst-children/Keeping-children-safe-online;
“Online/Internet Safety” //
https://resourcecentre.savethechildren.net/keyword/onlineinternet-safety; UNICEF, “Protecting children
online” // https://www.unicef.org/protection/violence-against-children-online.
5
Abhilash Nair, “Mobile Phones and the Internet: Legal Issues in the Protection of Children,” International
Review of Law, Computers & Technology 20 (2006).
6
Ibid.
7
J. Allan Cobb, “An Examination of Venue Issues concerning Online Crimes against Children: What
Happens When Cyberspace is Used to Lure Children into Sexual Relations - A Look at Federal Venue
Provisions [notes],” Journal of Family Law 35 (1996-1997).
8
Stefano Caneppele and Marcele F. Aebi, “Crime Drop or Police Recording Flop? On the Relationship
between the Decrease of Offline Crime and the Increase of Online and Hybrid Crimes. – Policing,” A Journal
of Policy & Practice 13 (2019).
9
UNICEF, supra note 4.
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Facebook has been considered a new “Baby Book” and as Kumar and Schoenebeck
state: “Through sharing photos of their babies, mothers portrayed their identities as
good mothers, conveying attractive children, embracing humor, and showing
evidence of milestones—all indicators of a healthy and happy family.”10
However,
this pushes them to face the same dangers as everyone else on social media does.11
Grace et al. state that sharing of a child's personal information on social media offers
easy access to not only photos of the minors, but also allows the searcher to obtain
detailed and personal information about the kid. That, in turn, makes them face the
harmful side of social media more easily.12
Minkus et al. argue that “public photo of
a child with the caption ‘Happy birthday, Olivia!’ provides an observer with knowledge
of the child’s face, name, and birthday. This could be exploited by criminals or
predators local to the child, or by an identity thief who wishes to infer the child’s
personally identifiable information.”13
Social media usage increases every year: billions of people utilize the internet
every day.14
Therefore, it is not surprising that many parents will use it not only for
themselves but also for their kids. It is normal when a couple of mothers chat about
their children. Unfortunately, this simple conversation may obtain a different shape
after being relocated to social media. There are studies to show that it is complicated
for parents to partake in social media activities without sharing too much about their
children.15
Estonian studies about “sharenting” 16
have demonstrated that Estonian
mothers also actively use social media accounts for posting personal data about their
children; they do it quite liberally, without thinking about the privacy or dangers it
may cause.17
Such surveys demonstrate that kids responded very differently on such
actions. In most cases, they did not oppose it if shared information portrayed them
in a positive light.18
However, it was brought out that even in situations where
10
Priya Kumar and Sarita Schoenebeck, “The Modern Day Baby Book: Enacting Good Mothering and
Stewarding Privacy on Facebook,” Systems in Support of Health & Wellness (March 14-18, 2015): 1309.
11
Stacey B. Steinberg, “Sharenting: Children's Privacy in the Age of Social Media,” Emory Law Journal 66
(2017).
12
Grace Y. Choi and Jennifer Lewallen, “‘Say Instagram, Kids!’: Examining Sharenting and Children’s
Digital Representations on Instagram,” Howard Journal of Communications 29 (2018).
13
Tehila Minkus, et al., “Children Seen But Not Heard: When Parents Compromise Children’s Online
Privacy,” WWW ‘15: Proceedings of the 24th International Conference on World Wide WebMay (2015):
777 // https://doi.org/10.1145/2736277.2741124.
14
Simon Kemp, “Digital 2020: Global Digital Overview” (Jan 2021) //
https://datareportal.com/reports/digital-2020-global-digital-overview.
15
Jenn Bartels Supple, “Parents’ Growing Pains on Social Media: Modeling Authenticity. – Character and
... ,” Social Media 1 (2015).
16
“Sharenting – the habitual use of social media to share news, images, etc. of one’s children” (May 2020)
// https://www.collinsdictionary.com/dictionary/english/sharenting.
17
Merike Lipu and Andra Siibak, “Take it down!: Estonian parents’ and pre-teens’ opinions and experiences
with sharenting,” Media International Australia 170 (2019).
18
Ibid.
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parents realized that they should obtain their kids’ approval regarding the subject,
they hardly ever did so.19
The convention on the rights of the child20
(UNCRC) (art 3) provides that “In
all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.” This also covers the parents’
behaviour in a family.21
The best interests of a child should be considered also when
uploading the pictures of the child in social media, especially when applying the rights
of the child as “privacy”, “child’s consent” and the “right to be forgotten”.
Estonian Child Protection Act (2018) § 7 states that parents are responsible for
protecting the best interest of their children. The Previous Personal Data Protection
Act (2007) § 10 (1) confirmed that it is possible to publish someone’s else photos
only with the consent of that person. Uploading the picture of a child by a parent on
social media has been also included in those requirements.22
The authors find that on the surface it does not seem like a big problem: it is
even relatively innocent and natural to be proud of being a parent of the new-born.
Moreover, it is not usually frowned upon when a happy mother reveals her new-born
on social media. According to Ammari et al. “mothers share content online and take
on the responsibility of managing sharing more than fathers do” while “fathers are
more restrictive about sharing to their broad networks and are concerned about
sharing content that could be perceived as sexual”.23
Nevertheless, it is pointed out
by the authorities that an innocent potty training photo may have a more profound
impact than just a cute reaction from family and friends. In fact, there are no
guarantees that the innocent photo will not end up in the hands of the online
predator. Furthermore, it is emphasized that many photos end up in the hands of
the wrong individuals.24
Another complicated problem lies in the fact that, contrary to some parents
beliefs, children do have the right to privacy. It is amazing that when parents
demand from the schools and other institutions their permission before uploading
the pictures of their child,25
yet they see no problem in uploading pictures of their
19
Ibid.: 63.
20
Convention on the Rights of the Child, UN General Assembly, 20 November 1989, United Nations, Treaty
Series, vol. 1577.
21
Children’s Bureau, Child Welfare Information Gateway, “Determining the Best Interests of the Child”: 2
// https://www.childwelfare.gov/pubPDFs/best_interest.pdf.
22
Maire Iro, “Lapsed ja andmekaitse. Milliseid muudatusi toob kaasa EL-i isikuandmete kaitse üldmäärus?”
(Children and data protection. What changes brings along GDPR) (May 2020) //
http://ajakiri.lastekaitseliit.ee/2018/02/05/lapsed-ja-andmekaitse-milliseid-muudatusi-toob-kaasa-el-i-
isikuandmete-kaitse-uldmaarus/.
23
Tawfig Ammari, et al., “Managing Children’s Online Identities: How Parents Decide what to Disclose
about their Children Online,” CHI ‘15: Proceedings of the 33rd
Annual ACM Conference on Human Factors
in Computing Systems (April 2015): 1903 // http://dx.doi.org/10.1145/2702123.2702325.
24
INTERPOL, supra note 1.
25
Stacey B. Steinberg, supra note 11: 843.
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children by themselves. Nevertheless, children have the right to decide if they even
want to have a social media account, not to mention one with the hundreds of baby
photos. It does not seem like a big problem, but for example, the analysis of one of
the internet security companies shows that the majority of children appear on social
media right after their birth and in some cases even before because some parents
create accounts and e-mails for children who are not even born yet. Absence of
pictures is resolved with the help of “ultrasound pictures”.26
It is possible that
parents forget that the internet is the vast and unapologetic place. Every shared
photo and phrase will stay there forever. Consequently, such children can never be
absolutely sure where, why and what images from their past will someday resurface.
There are many observations which note that there are more and more children
whose social media presence is so strong and influential that they obtain status
similar to that of a celebrity. There are many successful social media platforms,
where parents use their kids as models; alarmingly such accounts have thousands
and millions of followers. Usually, such channels are managed under the name of a
child by their parents.27
For example, a photo of a daughter of one reality television
star in US received over eighteen million “likes“ and almost two million comments.28
However, it has been found that such openness attracts not only positive attention,
hence is capable of having unpleasant stand towards the child.29
It has been
discussed that the impact on child’s development in such situations could be
unpredictable and affect them negatively.30
Moser et al. argue that “it is not yet
known how children will feel about having their personal lives documented online.”31
For example, they found out that children do not want their parents to share online
“embarrassing photos”, “ugly pics,” “baby photos”, or “[p]hotos that can expose
intimate life”.32
On the other hand children accept sharing “cute pictures,” “fun
family pics,” or “pictures that make me look good”.33
Archer found in her research
that “some of the influencer mums seemed to imply that it was more complicated to
discuss older children’s stories and issues on their blog, because older children were
more aware of their online presence and had a ‘voice’ themselves”.34
26
Paul G. Nixon, et al., eds., Digital Media Usage Across the Life Course (New York: Routledge, 2016),
50.
27
Reena Ninan, et al., “Mini Insta-Models: These Stylish Tots Are Already Famous on Instagram” (May
2020) //
https://abcnews.go.com/Lifestyle/mini-insta-models-stylish-tots-famous-instagram/story?id=37823227.
28
Kate Hamming, “A Dangerous Inheritance: A Child’s Digital Identity,“ Seattle U. L. REV 43 (2020):
1038.
29
Allan J. Choi and Jennifer Lewallen, supra note 12: 159-160.
30
Roman Globokar, “Impact of digital media on emotional, social and moral development of children,”
Gulhane Medical Journal 60 (2018).
31
Carol Moser, et al., “Parents’ and Children’s Preferences about Parents Sharing about Children on Social
Media,” Emerging Privacy, CHI 2017 (May 6–11, 2017) (Denver, CO, USA): 5221.
32
Ibid.: 5224.
33
Ibid.
34
Catherine Archer, “How influencer ‘mumpreuner’ bloggers and ‘everyday’ mums frame presenting their
children online,” Media International Australia 179 (2019): 53.
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Every problem has several sides. It is argued that numerous parents use social
media not only for enjoyment, fun, and profits, but they also need to have a
connection with other moms and dads. Revealing the child’s personal information
happens in the process.35
It does not mean that they share private information about
their kids having bad intentions. In fact, many of them indeed need support or even
more, do not have other choices. For example, it was analysed by Children’s Hospital
that many new parents, especially fathers, need and seek help through social media.
As a result, they share many details about their new-borns.36
An even better illustration of this is the study which explored families who are
raising children with special needs. For such parents, social media was not only an
excellent venting place or source for advice but also an essential place for support.
There are many situations where parents need encouragement from other caregivers
facing similar problems in order to deal with their difficult situations. It has been
found that various parental support groups which share their experiences through
social media provide needed knowledge and support.37
Sharenting child’s photos is parental discloser and undoubtedly parents have
no intention to harm a child but they do not see the long-term consequences of their
actions, including possible psychological impact38
to the child, identity theft or
exposure to online predators.39
The situation becomes even more complicated when considering the new
family models. Even though laws use the term “parent” and it is clear that a parent
as a legal representative of the child must ensure that the rights of the child are
protected, in actual life children often do not live with their biological and legal
fathers but are raised by the social fathers.40
Who is responsible for what when
talking about child protection? This is an additional aspect that the state should
consider when working out the tools to protect children’s privacy in social media.
To conclude, parents sharing personal information about their children on social
media has many different sides and outcomes. It is not possible to declare that every
post on social media will cause harm to the child. But, there is enough evidence to
claim that, by doing so, children can lose their privacy and most importantly, the
35
Stacey B. Steinberg, supra note 11: 841-842.
36
C. S. Mott Children’s Hospital, “Children’s Hospital National Poll on Children’s Health. Parents on social
media: Likes and dislikes of sharenting” (May2020) // https://mottpoll.org/reports-surveys/parentssocial-media-likes-and-dislikes-sharenting;
Charlotte Chalklen and Heather Anderson, “Mothering on
Facebook: Exploring the Privacy/Openness Paradox,” Social Media + Society (April-June 2017): 7-8.
37
Laura Cole, et al., “Caregivers of School-aged Children with Autism: Social Media as a Source of
Support,” Journal of Child & Family Studies 26 (2017); Stacey B. Steinberg, supra note 11: 880; see also
Roman’s case in Kate Hamming, supra note 28: 1035.
38
See Claire Kathryn Pescott, “‘I Wish I was Wearing a Filter Right Now’: An Exploration of Identity
Formation and Subjectivity of 10- and 11-Year Old’ Social Media Use,” Social Media + Society (OctoberDecember
2020).
39
Kate Hamming, supra note 28: 1037.
40
Kristi Joamets and Tanel Kerikmäe, “European dilemmas of the biological versus social father: Estonian
case,” Baltic Journal of Law and Politics 9 (2016).
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opportunity to choose whether they even want digital identity in the first place.
Besides, children who are not using social media themselves should not be connected
to online dangers through the actions of their parents.
2. PRIVACY, CONCENT, AND THE RIGHT TO BE FORGOTTEN AS LEGAL
TOOLS PROTECTING A CHILD’S RIGHTS
Hamming states that “legislative need demands that laws expressly call out
children’s information as an additional subcategory of personal information that is
similarly vulnerable to high risks and deserving of heightened protection.”41
This calls
for an analysis of the current legal tools protecting children from their data being
overshared on social media. In this section, privacy, a child’s consent, and the right
to be forgotten are analysed and discussed.
2.1. PRIVACY
The privacy of a child is a timely topic, which is steadily brought up because of
the fast development of technology and the risks it poses.42
A child’s privacy is an
actual topic in European Commission policies towards making online space safer for
children.43
However, policies must be embodied in a national level as well.
UNCRC44
Article 16 does call for the protection of the privacy of the child, but
at the same time, it does not touch the topic of online privacy of children. The EU
General Data Protection Regulation45
(GDPR) is an instrument which is involved with
both, but it is noted that the online privacy of the children in the online realm needed
and still needs modifications, new ideas and deeper analyse46
as “technology and
Internet present new issues that need non-traditional solutions”.47
Referring to
Boyd,48
Hamming brings out the following four characteristics which create new
challenges: “persistence (the durability of online expressions and information), 2)
visibility (information’s potential audience), 3) spreadability (the ease with which
41
Kate Hamming, supra note 28: 1038.
42
Abhilash Nair, supra note 6: 180; Kate Hamming, supra note 28: 1039.
43
European Commission, “Creating a Better Internet for Kids” (April 2020) //
https://ec.europa.eu/digital-single-market/en/policies/better-internet-kids .
44
Convention on the Rights of the Child, supra note 20.
45
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p.
1–88.
46
Milda Macenaite, “From universal towards child-specific protection of the right to privacy online:
Dilemmas in the EU General Data Protection Regulation,” New Media & Society 19 (2017): 766; Convention
on the Rights of the Child, supra note 20.
47
Kate Hamming, supra note 28: 1043.
48
Danah Boyd. “It’s Complicated: The Social Lives of Networked Teens”: 143; in: Internet Law: Cases &
Problems. 9th
ed. (Yale University Press, 2019).
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information is shared), and 4) searchability (the ability to find information)”.49
All
these characteristics prove how sharing child’s information in social media violates
his/her privacy.
A child’s right to privacy has been recognized in several EU and international
laws. Article 16(1) of the Treaty on the Functioning of the European Union50
and
Article 8(1) of the Charter of Fundamental Rights of the European Union51
brings
forth the idea that their “personal data” should be protected: TFEU Article 16 (1)
provides: “Everyone has the right to the protection of personal data concerning
them”. Charter of Fundamental Rights of the EU Article 8 (1) provides “Everyone has
the right to the protection of personal data concerning him or her”. European Court
of Human Rights has ruled that “national law must set out appropriate measures to
ensure judicial remedies against infringements of data protection rights” 52
The
abovementioned UNCRC Article 16 also states the same necessity, providing that:
“No child shall be subjected to arbitrary or unlawful interference with his or her
privacy, family, home or correspondence, nor to unlawful attacks on his or her honour
and reputation. The child has the right to the protection of the law against such
interference or attacks.”
The right to privacy, even for children, will always be in opposition to other
rights (such as freedom of expression and/or parental rights).53
However, in the
cases concerning freedom of speech and press, the best interest of the child should
always prevail54
as well as in other situations where the rights collide.
Steinberg argues that “no legal scholar has yet published an article centred at
the intersection of a parent's right to share online with a child's right to privacy on
the internet”.55
It is beyond dispute that there are laws which protect the interest of
the children in question. However, there are no direct laws which prohibit parents
from posting data which concern their children online. One can even speculate that
parents upload the information about their child in internet for the interests of the
child to announce his/her “existence” and “progress”. Even more, Chalklen and
Heather have found in their survey that “the benefits offered by Facebook and our
increasingly digitally networked society cannot be discounted”56
despite the fact that
these parents in a survey cited privacy issues as the most common downsides of
Facebook use, but claimed that they will continue to use Facebook and other social
49
Kate Hamming, supra note 28: 1043-1044.
50
Treaty of European Union, OJ C 326, 26.10.2012.
51
Charter of Fundamental Rights of the European Union, OJ C 202, 7.6.2016.
52
European Union Agency for Fundamental Rights and Council of Europe, Handbook on European law
relating to the rights of the child (2015), 191.
53
Stacey B. Steinberg, supra note 11: 839.
54
UNICEF, “Guidelines for journalists reporting on children” (March 2021) //
https://www.unicef.org/eca/media/ethical-guidelines.
55
Stacey B. Steinberg, supra note 11: 856.
56
Charlotte Chalklen and Heather Anderson, supra note 36: 8.
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networking technology.57
As parents are “the gatekeeper of personal information of
their children, they are the ones to decide whether and how many pictures they
contribute to Social Networking Sites,”58
such survey results are a bit frightening. On
the other hand, there can be found surveys which prove that parents do consider the
privacy of their children before sharing their pictures in social media59
.
The right to privacy should, in theory, protect the child not only from strangers
but also from the danger which may be inflicted by parents due to oversharing
personal information. At the same time, it is demonstrated that more and more
photos from parent social media accounts end up on child exploitation sharing sites.60
One can state that posting pictures of one's child will cause more harm than parents
could imagine.61
Also, it is easier to agree that a violation against a child privacy
occurs when a stranger embodies it and much more complicated to claim that a
mother who is sharing a potty-training photo of her child in social media creates
similar harm and infringement of privacy.
Even though article 16 of the UNCRC provides a clear protection to the child’s
privacy, the stronger protection is given by the new GDPR62
. It is not the best tool in
the cases connected to home affairs because it is not designed for that.63
Even
though Macenaite has stated that the new Data Protection Regulation has shifted it
“from universal towards child-specific protection of the right to privacy online”64
, it is
explained that at the end of the day GDPR does not offer a penalty or possibility to
turn to Data Protection Inspectorate if the dispute is family oriented. For example, in
Estonia such inspectorate has explained that: “Parents must protect their children
and pictures about other person can be uploaded only with the consent of this person.
Parents fulfil the obligations concerned a child together. If parent cannot find
consensus? If at all or where publish the photos of the child, then only court can solve
such dispute. Inspectorate does not intervene to the family dispute, participants can
solve by themselves or in a court.”65
The Data Protection Inspectorate has clarified
on several occasions that by Article 4 of the Estonian Law Enforcement Act66
, the
57
Ibid., 9.
58
Amina Wagner and Lisa Alina Gasche, “Sharenting: Making Decisions about Other’s Privacy on Social
Networking Sites,” Multikonferenz Wirtschaftsinformatik (March 06-09, 2018) (Lüneburg, Germany): 978.
59
See ibid.; Keltie Haley, “Sharenting and the (Potential) Right to Be Forgotten,” IND. L. J. 95 (2020):
1008.
60
Jess Staufenberg, “French parents 'could face prison' for posting photos of their children on Facebook”
(May 2020) // https://www.independent.co.uk/news/world/europe/french-parents-told-their-children-
might-sue-them-for-pictures-put-on-facebook-a6906671.html.
61
Lucy Battersby, “Millions of Social Media Photos Found on Child Exploitation Sharing Sites” (May 2020)
// http://www.smh.com.au/national/millions-of-socialmedia-photos-found-on-cild-exploitation-sharing-
sites-20150929-gjxe55.html.
62
Regulation (EU) 2016/679, supra note 45.
63
European Commission, “What does the General Data Protection Regulation (GDPR) govern?” (May 2020)
// https://ec.europa.eu/info/law/law-topic/data-protection/reform/what-does-general-data-protection-
regulation-gdpr-govern_en.
64
Milda Macenaite, supra note 46: 766.
65
Sirje Biin, “Estonian Data Protection Inspectorate,” 04.09.2017, nr 2.1.-5/17/1725 [e- mail].
66
Law Enforcement Act (Estonia), RT I, 22.03.2011, 4.
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inspectorate does not resolve issues concerning the rights and freedoms of
individuals.67
Furthermore, GDPR rules, which are designed to protect the privacy of
individuals, may harm the children. According to Sculthorpe68
officials have warned
that new laws would ban the software which is capable of catching various abuse
images involving the children because it will be unlawful to scan huge amount of data
uploaded on different platforms. By this “new EU rules on data protection are a ‘gift
to paedophiles’ because they undermine automatic scanning for child abuse images
in the UK”.69
All this demonstrates the importance of parents’ behaviour when sharing
information about their children in social media. Undoubtedly there are some gaps in
legislation and implementation of legal rules, as inter alia the Estonian case proves.
Also, this analysis shows that the question of a child’s privacy needs more thorough
analyses to ensure that the aim of the protection of the child’s privacy will happen in
real life.
2.2. THE CHILD’S CONSENT
Another legal tool which should protect the child’s rights, including his/her
privacy, is the consent of the child. However, in the EU, parental consent in an online
environment is still a novel area, and it is suggested that it needs in-depth analysis.70
Moreover, it is noted that Article 8 of the new GDPR is one of the most important,
but at the same time most disputed provision.71
It deals with the situations where
the child (or the company) needs to ask the permission of the parent for using social
media services if the child is below a certain age.72
GDPR affirms that the personal
data of the children must be protected and that “they may be less aware of the risks,
consequences and safeguards concerned and their rights concerning the processing
of personal data”.73
That should include the situations where the child has his/her
own social media account which was created by his/her parents. However, an issue
highlighted by several studies show that GDPR is designed for conditions where
67
Vaideotsus avaliku teabe asjas (Appeal decision in a public information case) nr. 2.1-3/16/2, Data
Protection Inspectorate, Vaideotsused 2016 //
https://www.aki.ee/et/inspektsioon-kontaktid/menetlusotsused/vaideotsused/vaideotsused-2016.
68
Tim Sculthorpe, “New EU rules on data protection are a ‘gift to paedophiles’, government officials warn”
(May 2020) //
https://www.dailymail.co.uk/news/article-6454521/New-EU-rules-data-protection-gift-
paedophiles.html?fbclid=IwAR3QOX-HKs26izCZemyuRzoa8MSbrnGoSX7S0vbWv5MeryZOV42CPXXnIIA.
69
Ibid.
70
Milda Macenaite and Eleni Kosta., “Consent for processing children’s personal data in the EU: following
in US footsteps?” Information & Communication Technology Law 26 (2017): 194-195.
71
Joseph Savirimuthu, “The EU, Online Child Safety and Media Literacy,” International Journal of
Children's Rights 19 (2016).
72
Regulation (EU) 2016/679, supra note 45.
73
Ibid.
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marketing is targeting, or services are offered directly to a child and where the parent
is then the one who must give consent instead of a child.74
The topic of consent was
not evaluated deeply enough, and the EU did not consider that in many cases,
parental consent does not produce any significant or desired effects. Therefore, one
can conclude it is not possible to use consent as an effective legal solution. In
situations where a child under a specific age limitation does not wish to have a social
media account, parents may still create it, without asking the opinion of the child.75
Still, by having the possibility to give consent instead of the child, the parent will
choose the best option for the child.76
However, it may result in the belief that the
consent of a child is not necessary when the parent posts an image or any other data
about their child, because the parent is the one who should make a choice.77
This
will violate the child’s rights.
However, as stated above, the issues about a parent asking the consent of a
child are not part of GDPR regulation. One can only assume that the parent keeps in
mind the best interests of the child, but the interpretation what is in the best interests
of the child can differ from the child protection officials understanding. For example,
in Estonia, a representative of the Data Protection Inspectorate has clarified that
GDPR and Estonian Personal Data Protection Act allow individuals to photograph and
film for personal purposes, but the disclosure of such photos without the consent of
all parties is prohibited.78
Söderman v. Sweden case, for example, demonstrates
what will happen if the law itself does not prohibit filming without consent. In this
case the Swedish court decided that a man filming a naked 14-year old girl was not
guilty of filming a minor without the permission because at that time Swedish law did
not prohibit filming without the other persons’ consent. Therefore, regarding the
filming without the knowledge of the child, the man was acquitted.79
However, later
when the case reached to the European Court of Human Rights the court found that
the state has positive obligations to ensure that provisions which prohibit filming
without consent are in place, especially in case of minors. Moreover, importance of
the consent was pointed out.80
We argue that despite recognizing the importance of consent, there are still no
laws which stop parents from posting personal information, including photos, on
74
Milda Macenaite and Eleni Kosta, supra note 70: 193-195.
75
See Rachel Buchanan, et al., “Post no photos, leave no trace: Children’s digital footprint management
strategies,” E-learning and Digital Media 14 (2017).
76
Valerie Steeves, “It's Not Child's Play: The Online Invasion of Children's Privacy,” University of Ottawa
Law & Technology Journal 3 (2006).
77
Stacey B. Steinberg, supra note 11: 850-851.
78
Siiri Ottender-Paasma, “Lasteaed keelas andmekaitse seadusest tulenevalt laste pildistamise” (The
kindergarten prohibited photographing children pursuant to the Data Protection Act) (May 2020) //
https://www.err.ee/887558/lasteaed-keelas-andmekaitse-seadusest-tulenevalt-laste-pildistamise.
79
Söderman v. Sweden, no. 5786/08, ECHR 2013, point 23, 38, 39.
80
Ibid., point 117.
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social media, without the consent of their children. We also agree with Cheung that
there are no instruments which are capable of putting an end to information
oversharing by parents.81
Additionally, parents do not take into account the wishes
of their children regarding the questions of posting on social media.82
Therefore, the
existing practice and legal framework of consent are possibly not enough to protect
the privacy of the children in social media.
2.3. THE RIGHT TO BE FORGOTTEN
Often it has gone unnoticed that the right to be forgotten83
is applicable also
for children. Children need the possibility to request the removal of their personal
data because they “are different from adults in many developmental, psychosocial
and behavioural respects.”84
It has been stipulated that they are most likely to post
online something that they will regret later, or they allow parents to do so, without
understanding the consequences. Therefore, it is crucial to have some way out of the
situation which was once created by parents or childhood immaturity.85
However, as
discussed above, the obligation to ask for consent from a child before sharing
information about him/her in social media, is not effective. Ly-Reilly confirms it by
pointing out that infants, toddlers and small children, are not able to (fully) realise
their actions.86
Google Spain vs Google case demonstrated that it is reasonable to change
“digital footprints” of the individual when information about the individual does not
serve its purpose or is incorrect.87
GDPR gives all “data subjects” the possibility to
demand to correct false or to wipe off all information, which no longer serves the
intended purpose.88
The case itself was about a man who discovered upon an
internet search that there are a couple of newspaper articles which showed him in an
unfavourable light. Therefore, he wanted to remove those articles.89
Such actions
against Google helped to confirm that search engines do have an obligation to remove
inadequate, inaccurate, irrelevant or excessive data. 90
These principles are
applicable also for children’s data on the internet.
81
Helier Cheung, “Can you stop your parents sharing photos of you online?” bbc.com (May 2020) //
https://www.bbc.com/news/world-47722427 .
82
Marke Lipu and Andra Siibak, supra note 17: 63-65.
83
A right to require the removal of one’s personal data from internet.
84
Yun Li-Reilly, “Remembering, Forgetting, Reinvention and Freedom: Social Media and Children's Right
to Be Forgotten,” Advocate 75 (2017): 664.
85
Ibid.: 664-665.
86
Ibid.: 665.
87
Google Spain and Google, Court Decision, 13.05.2014, C-131/12, EU:C:2014:317.
88
Regulation (EU) 2016/679, supra note 45, art 17.
89
Google Spain and Google, supra note 87, point 14-15.
90
Ibid., point 92-94.
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Statistics show that, for example, from May 2014 to Jan 2021 in Estonia there
were more than 27,428 URL deletions requested, in Finland 56,066, in Germany
635,221. Now this number is even greater.91
However, removal of the search result
can be deleted following the European data protection laws, and that will bring us
back to two things. Firstly, children will be able to request the removal of the
unwanted information personally from certain age. Secondly, even if the Google will
erase the unwanted material, the source (FB page of the parent etc.), will still
remain.92
Most importantly, CNIL v Google case demonstrated that even for adults,
this right may be quite hard to obtain outside the EU. For example, will it be possible
to erase something that is posted on Russian domain? Most probably, no.93
From the
perspective of children’s rights, again, one can notice several legal caps which need
more thorough analyse and solution.
The right to be forgotten is not able to protect small children because they
cannot, or they do not have enough knowledge to request the erasure of unwanted
information. That is the part where they should get the needed support from adults.
However, problems begin if it turns out that parents are the ones, who are making
the wrong decision and overshare personal information about their children. As a
result, it may be too late to use that right later in life because for that time their
undesired information could wander around the internet for years and it is not so
easy to eliminate all sources containing that data.
Haley argues that “the right to be forgotten framework could alleviate the
tension between the parents’ rights and children’s privacy interests in the context of
sharenting, as it balances the competing privacy interests of children and their
parents’ rights to disseminate information about their children on social networking
sites”.94
As mentioned above, Art 17 of GDPR provides that the data subject shall
have the right to obtain from the controller the erasure of personal data concerning
him or her without undue delay and the controller shall have the obligation to erase
personal data without undue delay in certain cases. This provision allows children to
request the removal of personal data from the internet but still the age as the
component of his/her maturity plays here an important role and gives again the
power to the hands of the parents. Lievens and Maelen discuss GDPR and its
application to the child right to be forgotten and the parents’ right to freedom of
expression and family-life contradicting the child’s rights. They argue that in certain
91
Google, “Search removals under European privacy law” (Dec 2020) //
https://transparencyreport.google.com/eu-
privacy/overview?hl=en&requests_over_time=country:FR&lu=requests_over_time.
92
Adam Satariano, “Right to Be Forgotten’ Privacy Rule Is Limited by Europe’s Top Court” (Dec 2020) //
https://www.nytimes.com/2019/09/24/technology/europe-google-right-to-be-forgotten.html.
93
CNIL v. Google, Court Decision, 24.09.2019, C-507/17, EU:C:2019: 772, point 63.
94
Keltie Haley, supra note 59: 1015.
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situations a child can “rely on child advocacy services or other organisations
representing the interest of children”95
when there is a need to erase the information
shared by his/her parents but one can hardly imagine how this will proceed in a
practice.
CONCLUSION
This article shows how technology impacts child’s rights and what the role of
parents in this situation is. Even more, it explores how parents’ actions in social
media can put their children at risk, especially in the situations where children do not
use social media personally. The article discussed legal tools applicable in preventing
parents from oversharing personal data about their children focusing on the right to
privacy of the child, consent of the child and the right to be forgotten.
It can be stated that there is a legal regulation in international, EU and national
level to protect a child’s privacy. Also, it is evidenced that parents do not upload the
pictures of their children in social media with intention to harm their child. The main
problem is the knowledge of the consequences if a child’s data has been put in social
media. Parents do have a responsibility to represent but also protect their child and
the child’s interest always prevails. But, in practice this unfortunately does not have
desired effect in child protection.
There is enough evidence to claim that by oversharing information about a child
in social media, children are losing their privacy and, most importantly, the
opportunity to choose whether they even want digital identity in the first place.
Children who are not using social media themselves should not be connected to online
dangers through the actions of their parents. The right to be forgotten is not able to
protect small children because they cannot, or they do not have enough knowledge
to request the erasure of unwanted information. That is the part where they should
get the needed support from adults. However, problems begin if it turns out that the
parents are the ones who are making the wrong decision and oversharing personal
information about their children. As a result, it may be too late to use that right later
in life because for that time their undesired information could wander around the
internet for years and it is not so easy to eliminate all sources containing that data.
This short analysis confirms that there are many gaps in legislation and
implementation of EU and international law. Based on the scientific literature used
for this research one can assume that one reason for this situation is the fact that EU
and international law provides the general principles but implementation in national
95
Eva Lievens and Carl Vander Maelen, “A Child’s Right to be Forgotten: Letting Go of the Past and
Embracing the Future?” Latin American Law Review 2 (2019): 72.
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law is weak. Even though the principle that a child’s rights must prevail exists, there
are collisions in the principles and hence there is need for a uniform interpretation
and clear guidelines for parents. States should deal with the situation more seriously
and find better tools to help grant better protection to children.
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