Meredith Mast, Associate Member, Immigration and Human Rights Law Review
I. Introduction
Rachel Barkman’s son was only two years old when he began correctly identifying different types of mushrooms.[1] As Rachel and her son took foraging walks through the nearby Vancouver woods, Rachel would occasionally record and upload videos to TikTok of her son picking mushrooms to showcase his unique and entertaining talent.[2] Rachel thought nothing of the videos until an unknown stranger approached her son in the forest months later and asked if he could show her some mushrooms.[3] Rachel quickly began to reevaluate the online presence she created for her son: “I immediately went cold at the realization that I had equipped complete strangers with knowledge of my son that puts him at risk.”[4]
“Sharenting” refers to the growing tendency of parents and soon-to-be parents to use the internet to share information about their children online.[5] Despite many parents holding innocent intentions when sharing images or videos of their children online, these posts create significant risks and privacy concerns.[6] Children are often unable to meaningfully comprehend that their name and likeness are being disseminated across the internet, potentially reaching hundreds, if not millions, of people if the content becomes a viral sensation.[7] In extreme circumstances, online content can gain millions of views within hours.[8] By sharing personal or intimate details about their children on online social networks, parents curate their child’s digital identity long before the child develops the capacity to willfully consent to such sharing.[9] Broadcasting a child’s development or formative years can have significant negative impacts on a young person’s ability to develop their own sense of self and understanding of their privacy expectations.[10]
Beyond the general concerns about respecting the privacy and autonomy of a child, sharenting poses legitimate risks to the safety and wellbeing of children.[11] Regardless of a parent or guardian’s intentions, posting images and videos of their children often reveals significant information about the child’s location, age, daily routine, or special interests.[12] Sharing such personal information on expansive social media platforms is especially concerning considering the risks of a child’s information or image being misused or exploited by ill-intended individuals or child predators.[13] Consider on report from the Australian Institute of Criminology, explaining that around 7% of individuals who shared images of children online received direct requests for sexually explicit child content from online predators.[14]
This Blog examines children’s human right to privacy in the context of sharenting. Even in the most well-intended circumstances, the sharing of a child’s image and information online impedes the child’s right to privacy. The increasing phenomenon of sharenting, along with the associated privacy risks for children, demands stronger State measures to safeguard and uphold children’s right to privacy. As the internet and social networks continue to develop, States must implement adequate safeguards to help children realize their rights.
II. Background
The online world was not originally constructed with the unique needs and vulnerabilities of children in mind.[15] Yet, the internet and social media have come to play a major role in children’s lives.[16] In Westen countries alone, an estimated 81% of children had some form of online presence before the age of two.[17] As the digital world—and children’s immersion in it—continues to expand, international human rights law requires States to consider how children’s privacy interests are impacted.[18] In particular, States should consider the risks parents create when they share images and information about their children online.
A. Children’s Human Right to Privacy
A child’s right to privacy is enshrined in two key human rights instruments: (1) the Universal Declaration of Human Rights, and (2) The Convention on the Rights of the Child (“CRC”).[19] The CRC, signed in 1989, outlines the civil, political, economic, social, health, and cultural rights of children.[20] With the exception of the United States, the CRC has been ratified by every member State in the United Nations.[21]
Article 16(1) of the CRC explicitly establishes children’s right to privacy, explaining that children shall not be “subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her hon[or] and reputation.”[22] Children also enjoy the right to the protection of the law against such interferences.[23] Article 19 further obligates State Parties to take all appropriate measures to protect children from all forms of mental or physical harm, as well as maltreatment and exploitation.[24] Inadequate protection of children’s privacy online can increase their vulnerability to such harms.[25] In the digital space, therefore, State Parties maintain an obligation to ensure that children’s privacy rights are not being infringed upon or exploited.[26]
Although social media and the explosion of “sharenting” were not contemplated at the inception of the CRC, the Convention’s principles on privacy and the best interests of the child provide a framework for how to proceed in this new age.[27] Traditionally, children’s privacy rights have largely been an issue for adults to determine.[28] However, in the context of the digital realm, children’s Article 16 privacy rights must be interpreted broadly.[29] Children’s capacities and relative agency change as they age and mature.[30] As such, their particularized privacy interest evolve along with personal development.[31] What a child may consider intrusive upon their right to privacy often changes as they grow.[32]
For instance, in the context of “sharenting,” a parent’s online communications about their child may begin long before the child can consent or conceptually understand the digital footprint that is being created. [33] Even in instances where young children may agree to the online sharing of their personal information, most cannot meaningfully comprehend that their name and image may be circulated worldwide and exist on the internet indefinitely.[34] Toddlers and young adolescents may not consider a parent sharing the intimate details about their lives or filming their day-to-day existence as a violation of their privacy.[35] But older children who previously consented to a parent’s online sharing may grow to find that the information shared is embarrassing or humiliating, thus taking a toll on the child’s mental and emotional wellbeing.[36] The flexibility of children’s evolving capacities requires require that determinations of their ability to consent to online sharing account for more than just their age.[37] State Parties must consider children’s ability to actually understand and comprehend how their information is being transmitted.[38]
In 2021, the Committee on the Rights of the Child released General Comment No. 25 to expand upon the intersections of the CRC and the digital environment, as well as to provide guidance on measures State Parties must take to ensure compliance with the mandates of the Convention.[39]
III. Discussion
The Committee on the Rights of the Child’s General Comment No. 25 issued a broad call to action for State Parties to develop national legislation and domestic regimes to safeguard child privacy in the digital realm.[40] The Comment instructed States to consider children’s evolving capacities and best interests, as well as implement and regularly review legislative and administrative measures to ensure that children’s privacy rights are protected and rectifiable.[41] However, there is no distinct brightline rule or framework for how such considerations should be applied in practice. .[42] As States continue to develop individualized responses in this changing area, France and Minnesota have provided potential starting points for legislative approaches.
A. France: Children’s Image Rights Law
In 2024, France adopted new legislation specifically aimed at safeguarding children’s image rights regarding the practice of “sharenting.”[43] The Children’s Image Rights Law expanded parents’ obligations to protect their children’s privacy rights online, while also highlighting children’s right to privacy and to their image.[44] The law provides that “parents jointly protect the image and rights of their minor child[ren].”[45] In line with the recommendations from General Comment No. 25, parents must engage the child in exercising their image rights, taking into account the child’s age and maturity level.[46] In practice, however, it remains unclear how such child-centric considerations will be effectively implemented or monitored.[47]
Perhaps of greatest significance, the law secures a right to erasure, permitting parents to request the deletion of their child’s photos or videos.[48] Accordingly, if a child no longer wishes for their image to be available online, or parents suspect that posted content is being misused for nefarious purposes, the child’s parents have a course of action to ensure the content is removed from the online sharing platform.[49] Parents must request that the data controller or social network in question remove the child’s image.[50] The network, in turn, must respond as soon as possible but no later than within one month, barring extraordinary circumstances.[51]
B. Minnesota: House File 3488
Similar to the Children’s Image Right’s Law, the Minnesota House passed House File (“HF”) 3488 in response to growing concerns over sharenting and children’s privacy.[52] The bill contains several provisions relating to children’s compensation for appearance in their parents’ or guardians’ online postings which are beyond the scope of this Blog.[53] Additionally, although the United States is not bound by the CRC, the present bill remains informative on how to approach the safeguarding of children’s privacy interests across the globe.
HF 3488, in contrast to France’s legislation, takes a child’s right to erasure a step further. Rather than only permitting parents to request a social network to delete the child’s image, the Minnesota bill enables children over the age of 13 to request the deletion of any content featuring their likeness.[54] Individuals who are currently over the age 18, but were a minor at the time the content was posted, may similarly make requests for deletion.[55] HF 3488 further entitles children to commence a civil action against the creator of the relevant content if their rights are or have been violated.[56]
Both the French and Minnesotan models serve as a prime starting point for other States to follow as they develop their own domestic regimes to protect children’s privacy rights. Each approach aligns with the Committee on the Rights of the Child’s recommendations by considering the unique needs and evolving maturity of children. By granting children or their parents the ability to request the removal of content featuring the child, these models seek to uphold children’s autonomy and dignity in the exercise of their privacy rights.[57] Nevertheless, substantial gaps remain in ensuring children have clear, practical pathways to seek redress and enforce their privacy rights.[58]
C. Considerations Moving Forward
The above models support children’s right to privacy by implementing the right to erasure. By enabling children to take an active role in deciding when their image can be removed from the internet, States rightfully acknowledge that a child may withdraw consent, and that their understanding of privacy may evolve as they grow and mature.[59] However, each model presents unique access to justice issues.
Under the French model, the ability to exercise a cause of action to remove a child’s image or video from a social network lies with the parent, rather than the child.[60] Despite the French Civil Code’s requirement that parents and guardians involve their child in the exercise of their image rights — including the exercise of the right to erasure — it only authorizes adults to initiate such actions.[61] This introduces potential for abuse.[62] For instance, a teenager may clearly express that a parent’s sharing of their image violates their privacy rights and may request its removal. However, a toddler or younger child may lack the capacity to comprehend the extent of their image’s online presence, and by the time they are old enough to understand, the content may have already been publicly accessible for a significant period.[63]
Alternatively, the Minnesotan model grants a child the right to request the erasure of content in which they are featured.[64] However, this model introduces a different obstacle to access justice. To exercise their rights, children must not only be aware of the law’s existence but also have the means to access and afford legal counsel.[65] Additionally, the inherent power dynamic between parents and children may discourage some children from seeking redress for violations of their privacy rights.[66]
Further, while General Comment 25 broadly instructs States to consider children’s evolving capacities and best interests, it fails to offer concrete guidelines on how on how these principles should be implemented within domestic laws, policies, and procedures.[67] Limitations may arise in gathering sufficient input on how online sharing affects younger children, as their autonomy is frequently restricted by parental supervision, making it challenging to accurately assess their personal views on the matter.[68] However, as children already impacted by sharenting mature and begin articulating their experiences, it is imperative that States actively consult these individuals in the development of future safeguards, in order to fully assess and address the specific ways in which their rights have been affected within the digital environment. Additionally, given the prevalence of sharenting and the concerns over children’s ability to access recourse for violations of their privacy interests, States must work to educate children on their right to privacy to address issues raised by limited access to justice.
IV. Conclusion
The growing practice of sharenting poses unique risks to a child’s human right to privacy. Even when an online post is well-intended, sharing a child’s image and information online poses significant concerns regarding their safety and right to privacy. As exemplified by the legislative approaches adopted in France and Minnesota, there is a growing recognition of the need for new approaches to protect children’s privacy rights. While the highlighted domestic approaches offer valuable insights and serve as a useful foundation for other jurisdictions, both models require further refinement and practical development. As similar laws and digital sharing continue to evolve, States must ensure privacy protections are not only codified at the domestic level but are also accessible, enabling children to exercise their rights as they mature and understand their privacy rights.
[1] Kate Collins, TikTok Parents Are Taking Advantage of Their Kids. It Needs to Stop, CNET (Aug. 7, 2022), https://www.cnet.com/tech/services-and-software/tiktok-parents-are-taking-advantage-of-their-kids-it-needs-to-stop/ [https://perma.cc/S5NN-87Z6].
[2] Id.
[3] Id.
[4] Id.
[5] The practice of “sharenting” or “family influencing” also raises significant concerns about child labor, but discussions of such issues is beyond the scope of this article. See Marina A. Masterson, When Play Becomes Work: Child Labor Laws in the Era of “Kidfluencers,” 169 Univ. of Pa. L. Rev. 577 (2020); Joseph A. Cannataci (Special Rapporteur on the Right to Privacy), Artificial intelligence and privacy, and children’s privacy, at 12 n.16, U.N. Doc. A/HRC/46/37 (Jan. 25, 2021).
[6] Cannataci, supra note 5; Comm. On the Rights of the Child, General comment No. 25 on children’s rights in relation to the digital environment, at ¶ 12, U.N. Doc. CRC/C/GC/25 (Mar. 2, 2021) [hereinafter General Comment 25].
[7] Morgan Sung, Their children went viral. Now they wish they could wipe them from the internet., NBC News (Nov. 3, 2022), https://www.nbcnews.com/pop-culture/influencers-parents-posting-kids-online-privacy-security-concerns-rcna55318 [https://perma.cc/L55H-HSKW].
[8] See id. (explaining how a mother’s video of dancing with five-year-old daughter gained over six million views within a matter of hours).
[9] Cannataci, supra note 5.
[10] General Comment No. 25, supra note 6, ¶ 12; Sharing photos and videos of your child on social networks: what risks, CNIL (Dec. 20, 2023), https://www.cnil.fr/en/sharing-photos-and-videos-your-child-social-networks-what-risks [https://perma.cc/6S53-MABN].
[11] CNIL, supra note 10.
[12] Id.
[13] Id.; Antonio Gatto, Antonio Corsello, & Pietro Ferrara, Sharenting: hidden pitfalls of a new increasing trend– suggestions on an appropriate use of social media, 50 It. J. of Pediatrics 15 (2024).
[14] John Bulter, Parents who share photos of children online more likely to be approached for sexual images of them, The Guardian (May 1, 2024), https://www.theguardian.com/media/2024/may/02/parents-share-photo-kids-online-identity-aic-report-sharenting [https://perma.cc/7AAW-XJLB].
[15] General Comment No. 25, supra note 6.
[16] Id.
[17] Gatto, Corsello, & Ferrara, supra note 13.
[18] Id. at ¶ 4 (“The rights of every child must be respected, protected and fulfilled in the digital environment. Innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent, even where children do not themselves access the Internet.”).
[19] “Child[ren]” refers to individuals under the age of 18, “unless under the applicable law to the child, majority is attained earlier.” G.A. Res. 44/25, Convention on the Rights of the Child, art. 1 (Nov. 20, 1989) [hereinafter CRC]; Cannataci, supra note 5, at ¶¶ 67-68.
[20] Rachel Abrams, Family Influencing in the Best Interest of the Child, 2 Chicago J. of Int’l L. 2, 102 (2023).
[21] Id.
[22] CRC, supra note 15, art. 16(1).
[23] Id. at art. 16(2).
[24] Id. at art. 19(1).
[25] See generally id. at art. 16, 19.
[26] See Cannataci, supra note 5; General Comment No. 25, supra note 6.
[27] Abrams, supra note 20 at 101.
[28] Cannataci, supra note 5, at ¶ 79.
[29] Id. at ¶ 70.
[30] General Comment No. 25, supra note 6, at ¶ 19; Cannataci, supra note 5, at ¶ 83.
[31] General Comment No. 25, supra note 6, at ¶ 19; Cannataci, supra note 5, at ¶ 83.
[32] Cannataci, supra note 5, at ¶ 83.
[33] Sung, supra note 7.
[34] Id.
[35] Cannataci, supra note 5, at ¶ 83.
[36] Cannataci, supra note 5, at ¶ 83; CNIL, supra note 9 (“[P]hotographs and videos shared by parents can. . . damage [a child’s] online reputation (with the risk of cyber-bulling) and have a negative impact in the school setting, or on their personal and professional future.”).
[37] Cannataci, supra note 5, at ¶ 114.
[38] Id.
[39] General Comment No. 25, supra note 6, at ¶ 7.
[40] Id. at ¶¶ 19, 20, 23.
[41] Id. at ¶¶ 12, 19-21, 70.
[42] See id.
[43] Magalie Dansac Le Clerc and Juliette LePortois, France introduces new law to enhance the protection of children’s rights in France, Connect on Tech (Mar. 19, 2024), https://connectontech.bakermckenzie.com/france-introduces-new-law-to-enhance-the-protection-of-childrens-rights-in-france/#:~:text=The%20right%20to%20erasure%20(or,photos%20shared%20by%20the%20parent) [https://perma.cc/F5Q4-WXYB].
[44] Id.
[45] The French Civil Code defines a minor as an individual under the age of eighteen. C. civ. art. 388 (Fr.); C. civ. art. 372-1 (Fr.).
[46] Id.
[47] See Le Clerc and LePortois, supra note 43.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] H.F. 3488, 93rd Leg., 2024 Reg. Sess. (Minn. 2024).
[53] Id.
[54] Id.
[55] Id.
[56] Id.
[57] Id; C. civ. art. 372-1 (Fr.).
[58] See Erica Kayata, California passed a law to financially protect children used in online content. But does it go far enough?, Ne. Glob. News (Oct. 10, 2024), https://news.northeastern.edu/2024/10/10/californias-child-influencer-law/#:~:text=But%20recently%2C%20California%20joined%20Illinois,are%20compensated%20for%20their%20work.&text=California’s%20new%20law%20requires%20parents,they%20earn%20from%20these%20posts. [https://perma.cc/5Y67-W9VB].
[59] General Comment No. 25, supra note 6, at ¶ 19.
[60] Le Clerc and LePortois, supra note 43.
[61] Id.
[62] See Cannataci, supra note 5, at ¶ 120.
[63] Cannataci, supra note 5, at ¶ 83.
[64] H.F. 3488, 93rd Leg., 2024 Reg. Sess. (Minn. 2024).
[65] See Kayata, supra note 58.
[66] Cannataci, supra note 5, at ¶ 120.
[67] Id. at ¶¶ 19-20, 23.
[68] Id. at ¶ 120.
