Sharenting: Children’s Privacy in the Age of Social Media

Stacey B. Steinberg

Abstract

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first e-mail. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age.

Children have an interest in privacy. Yet parents’ rights to control the upbringing of their children and parents’ rights to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These parents act as both gatekeepers of their children’s personal information and as narrators of their children’s personal stories. This dual role of parents in their children’s online identity gives children little protection as their online identity evolves. A conflict of interests exists as children might one day resent the disclosures made years earlier by their parents.

This Article is the first to offer an in-depth legal analysis of the conflict inherent between a parent’s right to share online and a child’s interest in privacy. It considers whether children have a legal or moral right to control their own digital footprint and discusses the unique and novel conflict at the heart of parental sharing in the digital age. The Article explores potential legal solutions to this issue and offers a set of best practices for parents to consider when sharing about children online. It concludes by providing a child-centered, public-health-based model of reform that protects a child’s interest in privacy while also recognizing a parent’s right to share online.

Introduction

Johnny, age eight, is struggling to fit in at school. He has the traditional symptoms of ADHD, and Johnny has been suspended from class multiple times. His mother, frustrated with his behavior and looking for support and a community of mothers experiencing similar parenting struggles, starts a blog detailing his misbehaviors. Johnny’s mother posts pictures alongside Johnny’s weekly behavior reports. She has many followers and is often asked to guest blog for large news websites.

Each week, she has coffee with Becky’s mom. Becky, a ten-year-old girl with a chronic health condition, calls the local children’s hospital “home.” Becky is preparing for a stem cell transplant. Becky’s brother and sister reside three hours away with their grandmother, and Becky’s mother sleeps on the pullout couch in the hospital room. Becky’s mother writes a public blog, detailing her life as a mother of a chronically ill child. She has many followers on her blog and sells inspirational shirts and bracelets to help offset the costs of her daughter’s medical treatment. Becky often contributes to the blog, and beams when she receives inspirational messages from her supporters. Becky has a college savings account set up by one of her anonymous fans.

As they chat about their respective blogs, they often run into Emily’s father. Emily’s dad does not run a blog. He knows little about social media but does have a Facebook page and Instagram feed. He keeps his newsfeed private, but over the past few years, he has accumulated approximately 700 friends on Facebook—some from his years in college, some coworkers, some family, and other longtime friends. Emily’s father posts updates about Emily. He posts her achievements and occasionally posts the cute things she says. Emily is an avid gymnast, and her father posts pictures of her at gymnastics meets.

Parents like those of Johnny, Becky, and Emily use technology and social media not only to share information about their own lives, but also to discuss their children’s lives. When parents use social media in this way, they often share personal information about their children. These disclosures offer families the opportunity to connect with their communities—to share and to seek support. At the same time, parents sometimes share without the permission of their children, and these disclosures may foreclose their children from the opportunity to create their own digital footprints.

This Article argues that “sharenting,” a term used to describe the ways many parents share details about their children’s lives online, must be a central part of child-rearing discourse and legal analysis of the conflict between children’s rights and parental rights. There has been ample discussion focused on how young people often create (and harm) their digital identities, and scholars have explored the threats children face from third parties online. Yet little discussion is centered at the intersection of parents’ choices to publish information about their children in the virtual world and the effect such disclosures can have on the children. The dearth of discussion on this topic means that even some of the most well-intentioned parents likely press “share” on their digital devices without thinking about how their postings may affect their children’s overall well-being.

In many contexts, parents act as guardians for their children’s online identity, protecting children from harm online. Most parents reasonably expect schools, community organizations, and peer groups to obtain permission before sharing their children’s picture online. Similarly, if a company negligently or purposefully discloses a child’s personal information in a public arena, parents call on the harm to be remedied. Parents also play a supervisory role in their child’s Internet use, often by setting limits on their child’s access to the Internet and by discussing online safety threats such as cyber-bullying and sexting. Indeed, parents are seemingly the natural protector of their child’s digital identity.

However, parents are not always protectors; their disclosures online may harm their children, whether intentionally or not. A parent’s own decision to share a child’s personal information online is a potential source of harm that has gone largely unaddressed. Children not only have interests in protecting negative information about themselves on their parent’s newsfeed, but also may not agree with a parent’s decision to share any personal information—negative or positive—about them in the online world. There is no “opt-out” link for children and split-second decisions made by their parents will result in indelible digital footprints. While adults have the ability to set their own parameters when sharing their personal information in the virtual world, children are not afforded such control over their digital footprint unless there are limits on parents.

This Article is the first to provide a legal analysis on the intersection of a parent’s right to share and a child’s interest in privacy and healthy development. This is a novel issue linked to the rapid growth of social media. While parents have always swapped parenting stories with friends, communities, and sometimes public sources, stories shared on the Internet have a reach that simply was unfathomable a generation ago. Search engines such as Google index and cache the information, providing an opportunity for infinite rediscovery long after any value of the initial disclosure remains.

Part I of this Article explores the ways in which parents share details about their children’s lives. It provides an overview on the manner, frequency, and types of information parents share about their children online. Next, it offers specific examples of parental sharing in some of its most questionable and invasive forms. By evaluating instances of concern, this Part provides the reader with a deeper understanding of the scope of this new phenomenon and offers a taxonomy of the ways in which parents share about their children online. Lastly, this Part highlights both the moral and legal risks inherent in the current sharing practices of many parents. Through this analysis, this Part exposes this underexplored issue in children’s privacy scholarship.

Part II explores how the law regulates children’s privacy in the context of family life by providing an overview of relevant family law and privacy law cases. Additionally, this Part provides an overview of federal, state, and international laws aimed at protecting an individual’s privacy interest. Lastly, this Part recognizes that society often addresses children’s issues not only through a legal model, but also through a public health model of child protection. This Part provides examples of such models, including the role of best practice standards, in the child protection context.

Part III explores potential solutions in law and policy, highlighting the unique legal challenges surrounding this issue, and provides a novel legal approach to alleviating the potential harm caused by sharenting. This Part acknowledges that while the law can regulate children’s privacy in extreme cases, it is unlikely that a comprehensive global solution will reside in the legal realm. With this in mind, this Part proposes alternate solutions and advocates for reform through a public health model of child protection. This model offers children’s rights advocates an opportunity to effectuate change through advocacy, awareness, and education, similar to successful efforts in child safety issues such as Sudden Infant Death Syndrome (SIDS) and second-hand smoke risks. Consistent with such a model, this Part provides parents with a set of best practices to consider when sharing about children online grounded in public health and child development literature.

I. Parental Sharing on Social Media and Beyond

Children have no control over the dissemination of their personal information by their parents. This is different than instances when adults and teenagers share online, as one could argue they are aware of the consequences of such personal disclosures. Information shared on the Internet has the potential to exist long after the value of the disclosure remains, and therefore disclosures made during childhood have the potential to last a lifetime. This issue is ripe for a child-centered, solution-focused discussion to ensure the protection of the best interests of children that is responsive to the age and developmental stages of children as they mature. While today’s young people will be the first to settle into adulthood under this new landscape, future generations will follow in their path.

Social media offers parents many positive benefits. When parents share on Facebook or blog about their children’s lives, they are able to connect with friends and family, often receiving validating feedback, and in return, feeling supported in their decision to share information about their lives and the lives of their children. Whether by the award of a “like,” a “share,” or a gratuitous comment, public sharing of personal information often results in positive stimuli, which, in turn, encourages a parent to continue to put personal information in the public domain. Occasionally, a concerned friend or stranger might question the parent’s decision to share more information online than is publically deemed “acceptable.” But most viewers will fail to even recognize the child’s privacy interest in the information.

To understand the conflict at hand, it is important to first explore the manners in which today’s parents share on social media. Families share on social media in many unique ways. In almost all circumstances, sharenting requires parents to make disclosures about their children. These online disclosures have the potential to benefit children in many ways, but the practice also presents a number of legal and safety risks.

A. Understanding the Ways in Which Parents Disclose Information About Their Children

Most parents act with good intentions when they share personal information and photos of their children online. There are many benefits to online sharing, and in the usual course, parents are best situated to decide when sharing on social media is appropriate for their family. But parents often share without being fully informed of the consequences of their online disclosures and many are unaware of the long-term consequences of their posts.

For example, one mother found that innocent photos could instantly make their way into the wrong network and could be altered in alarming ways. This mother posted pictures online of her young twins during toilet training. She later learned that strangers accessed the photos, downloaded them, altered them, and shared them on a website commonly used by pedophiles. This mother warns other parents not to post pictures of children in any state of undress, to use Google’s search features to find any images shared online, and to reconsider their interest in mommy blogging. While her post is written lightheartedly, it exposes a very real and dangerous problem that receives little attention in a world where posting and sharing personal data is the norm.

The University of Michigan conducted a study exploring the ways parents share online about their children. The study’s authors polled parents and categorized the shared information in five ways: (1) “getting children to sleep,” (2) “nutrition and eating tips,” (3) “discipline,” (4) “daycare/preschool,” and (5) behavioral issues. The study noted that 56% of parents shared (potentially) embarrassing information about their children online, 51% provided information that could lead to an identification of their child’s location at a given time, and 27% of participants shared (potentially) inappropriate photos.

Researchers at New York University explored how generally shared “personally identifiable” information can pose a risk to children. By tracing a parent’s social media data to voter registration materials, children’s identity can be inferred, including name, location, age and birthday, and religion. This information often leads to the traditional concerns of “Stranger Danger” and, more specifically, to overexposure to acquaintances, data brokers, and unwanted surveillance. When parents share information with their social media feeds, they are often sharing with more than just the individuals they would consider “friends” in face-to-face relationships. This reality, coupled with the fact that “76% of kidnappings and 90% of all violent crimes against juveniles [are] perpetrated by relatives or acquaintances,” indicates that personal information about the location, likes, and dislikes of a child can be revealed to those who might wish to harm the child.

The threat posed by data brokers and electronic surveillance is equally worrisome. According to the NYU researchers, “[d]ata brokers build profiles about people and sell them to advertisers, spammers, malware distributors, employment agencies, and college admission offices.” The researchers expounded, saying:

[C]hildren’s merchandise market is in the hundreds of billion dollars in the US alone, it is not surprising that data brokers are already seeking to compile dossiers on children. Using the information that parents post about their children, data brokers can create mini-profiles that can be continually enhanced throughout an individual’s lifetime.

This same information could become subject to surveillance by various agencies, both governmental and nongovernmental.

In the United States, 92% of two-year-olds already have an online presence. Of these children, approximately one-third appear on social media sites as a mere newborn. When children appear in Facebook photos, 45.2% of the posts also mention the child’s first name, and 6.2% reference the child’s date of birth, allowing all viewers to establish the exact age of the child. On Instagram, 63% of parents reference their child’s first name in at least one photo in their stream, 27% of parents reference their child’s date of birth, and 19% share both pieces of information.

Many babies have an online presence even before birth because parents share sonogram pictures online in nearly one-fourth of pregnancies. “It’s shocking to think that a 30-year-old has an online footprint stretching back 10–15 years at most, while the vast majority of children today will have online presence by the time they are two-years-old—a presence that will continue to build throughout their whole lives.” Parents seemingly endorse this reality, as multitudes of well-wishers and supporters follow, comment on, and re-post much of the child-centered disclosures available on social media sites and blogs.

Some parents are lulled into a false sense of security that the data they share about their children will not be seen beyond a select audience. Some parents choose to post pictures and data about their children on websites and social media sites such as Facebook, which offer the user the ability to choose the audience for each disclosure. Many parents believe this provides them with a safety net, and they use little discretion sharing with their chosen audience. In reality, even these posts can reach a large audience, as the intended audience has the ability to save and repost the data in alternate forums.

One writer, Phoebe Maltz Bovy, has voiced concern that parents are potentially exploiting their children through the public disclosure of personal information in online forums. This writer has attempted to define the concept of oversharing to criticize parents’ use of social media that goes beyond sharing to exploitation of their own children. She defines the concept this way:

Parental overshar[ing] . . . does not refer to parents discussing their kids with friends and family. . . . Two criteria must be present: First, the children need to be identifiable. That does not necessarily mean full names. The author’s full name is plenty, even if the children have a different (i.e. their father’s) last name. Next, there needs to be ambition to reach a mass audience.

Bovy explores whether children can ever give consent for online disclosure of personal, potentially harmful and embarrassing information. She states, “[t]he reader assumes that the parent will do what’s best for her child. While the parent may set out to do this, using their own children in the service of a larger argument clouds their ability to self-censor. And with confession can come vanity.”

Consider one mother’s essay, I Am Adam Lanza’s Mother. After twenty-year-old Adam Lanza killed twenty children and six faculty members at Sandy Hook Elementary School in 2011, this mother (who is not Adam Lanza’s mother) wrote an impassioned essay expressing her struggle raising a mentally ill son. In the article, she pleaded for mental health reform, stating,

I am sharing this story because I am Adam Lanza’s mother. I am Dylan Klebold’s and Eric Harris’s mother. I am James Holmes’s mother. I am Jared Loughner’s mother. I am Seung-Hui Cho’s mother. And these boys—and their mothers—need help. In the wake of another horrific national tragedy, it’s easy to talk about guns. But it’s time to talk about mental illness.

By sharing her own story, and the story of her thirteen-year-old son, this mother graphically and bravely expressed the catastrophic challenges of raising a mentally ill and violent child. She included her own name and a picture of her son, and she described her daily parenting struggles. By expressing herself, perhaps this mother offered a much needed reality check to politicians and others at the forefront of public discourse on childhood mental health. Yet at the same time, she disclosed very personal, private information about her child to the world. Thus, it can be very difficult to differentiate advocacy from oversharing.

Some parents post about their children’s mental health, and others post detailed information regarding their children’s medical conditions. There clearly are benefits to sharing these personal experiences. By sharing, families with medically fragile children are able to connect with one another. These families break down stereotypes, help raise money for important research and advocacy, and often receive positive personal support from the community. But some adults with chronic disabilities have expressed concern about these common parental sharing practices. Carly Findlay, an adult who grew up with a chronic disability, wrote, “I would be mortified if my parents shared my condition at length (and publicly) as a child or an adult.” She continued, “I am glad I can make the informed educated choice to tell my story my way. . . . I wonder about the long term impact of parents sharing stories about [their child’s] disabilities online.”

In response to Findlay’s article, one mother responded, “it is my hope that special needs families will continue [to] shar[e] their stories. [Because] [p]rejudice is based in ignorance and an overall lack of exposure.” For many parents of disabled children, parents act as the child’s “only voice.” Another mother pleads, “[p]lease don’t attempt to silence that voice.” If society did not support these online disclosures, the realities of raising children with disabilities would often remain hidden. These family stories help create the patchwork of community our society depends upon for important research, advocacy, and support.

Parents also “sharent” to discipline their children. Parents are garnering Internet fame for posting pictures and videos of their children holding up signs in public spaces detailing their misbehavior. These parents, acting apparently with the goal of achieving behavioral change through public shaming, might receive some negative reaction from both their physical and online communities, but public shaming also garners praise from the public, and many parent’s share seeking public support. Yet experts point out not only that online discipline is disrespectful to children and humiliating, but unlike more traditional forms of punishment, these parents are creating an indelible digital footprint that will likely follow many of these children into adulthood.

B. Legal and Safety Risks Posed by Parental Oversharing

Some parents have found that even just posting a picture could create a privacy risk to their child. One mother, Paris, posted a picture of her daughter on Facebook. She received a like from a user whose name she did not recognize. “The stranger had made the toddler’s image her homepage photo and was presenting Paris’ son as her own child.”

Paris is not alone; another mother, Ashley, experienced a similar form of “digital kidnapping.” After posting a picture of her two daughters, Ashley found it was shared by another Facebook page that seemed to share many pictures of little girls. As Ashley looked closer at the link of her children provided on the page, she realized that any of the thousands of followers could not only see the image of her children, but could also follow the link back to her own Facebook page and track down more information about her daughters, including where they lived.

Parental disclosures on social media have also caused some children to be bullied by children as a result of embarrassing pictures and stories shared by their parents. Adults also engage in this form of online bullying. There are now public Facebook groups that make fun of pictures shared by other parents.

Former Google CEO, Eric Schmidt, highlights the prevalence of oversharing both caused by a child’s own doing and by the actions of others. “Schmidt apparently believes that, as time goes on [we will] reach a point where every single person has embarrassing information and pictures from their adolescence posted on social media sites online . . . .” In the same interview, Schmidt raised the possibility that one day all adults will be entitled to change their name to hide from the embarrassing content shared online during their teenage years. He also opined that Google will soon know enough about a person that it will be able to help users “plan their lives.”

There are many benefits to sharenting. Sharenting gives children a positive social media presence to help counteract some of the negative behaviors they might themselves engage in as teenagers. Additionally, by sharing on social media, parents offer their children positive networks by inviting supportive family members and friends into their daily lives. But these positive benefits must be carefully weighed against the dangers of sharing a child’s personal information in such a public space. By understanding this complex taxonomy, scholars can better discuss children’s rights online.

II. Children’s Rights, Privacy, and Public Health

No legal scholar has yet published an article centered at the intersection of a parent’s right to share online with a child’s right to privacy on the Internet. Indeed, few scholars have addressed the issue of interfamilial privacy or, more specifically, a child’s right to privacy from the parent. This Part situates sharenting within the existing legal and public health debates. The parental experiences discussed above, which make up the basis for sharenting disclosures, are intertwined with their minor children’s personal lives. While many parents make these online disclosures with good intentions, the children—the standard subject of the online disclosures—rarely participate in the decisionmaking process or in framing the way the story is told.

A. The Interfamilial Privacy Divide: When a Child and a Parent Have Differing Interests

Courts have shown reluctance to grant children privacy rights in the context of family life. Even when a court recognizes a child’s reasonable expectation of privacy, the court often places higher value on the interests of the parent, family, and the state in exercising control over the minor child. For example, when Nguon, a minor, was disciplined for engaging in Inappropriate Displays of Public Affection (IDPA), her school brought her mother into the matter, not to ensure effective discipline took place, but to ensure the child’s due process rights were protected. Nguon, a female student who had engaged in sexual conduct with another female, was far more interested in keeping the same-sex relationship private from her parents. However, the court ruled that while she did have an expectation of privacy in the information, her right was outweighed by the school’s need to involve her mother for Nguon’s own protection. Since the incident took place on school grounds, the administrators were obligated to notify the parents.

Despite being warned multiple times to cease engaging in IDPA on school grounds, Nguon ignored the warnings, and after six instances, Nguon was suspended from school for three days. In accordance with the state’s law requiring parental notification upon the suspension of a child (to provide children due process upon receiving a suspension), the school administrator called Nguon’s mother and provided her with details regarding the suspension and the instances of IDPA. The school informed the mother that both students were of the same sex; again, information Nguon did not want disclosed to her mother.

In evaluating Nguon’s privacy claim, the court found that since Nguon never brought her girlfriend to her house and her mother rarely came to campus, she had a reasonable expectation that the school would not share her sexual orientation with her parents. However, the court also recognized that the school’s interest in following state law was legitimate. The court concluded that the school’s interest in affording suspended children due process of law outweighed Nguon’s privacy right. It is interesting to note that while Nguon’s mother was contacted under the guise of Nguon’s “best interests” (ensuring her right to due process), the actual result of the decision was opposite to Nguon’s expressed interest in the matter. As is often the case, this paternalistic view of state action often gives little value to a child’s own voice.

In the above referenced case, the court rested its decision on a constitutional right to privacy. The Supreme Court has examined these competing interests as well. In Bellotti v. Baird, the Court weighed a child’s privacy interest against interests of the parents when a state statute was at issue. There, the Court held that if a State is to require a child to obtain parental consent before receiving an abortion, it must also provide an alternative procedure where the child can still be authorized to receive the abortion. The Court detailed two judicial bypass mechanisms: (1) the child is required to show she possessed sufficient maturity and information to make the decision on her own, or (2) even if she does not, the abortion is still in her best interest.

The Court recognized that the child had a right to privacy and that the parent could not block her access to abortion even if the parent did not provide consent. The Court first held that “the guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors,” then further held that “the potentially severe detriment facing a pregnant woman is not limited by her minority.” Belotti provides a glimpse of how the courts walk the proverbial tightrope with regards to interfamilial privacy. Courts, like parents, struggle to protect children while simultaneously allowing them to grow into independent adults.

The Court has affirmed a parent’s right to control the upbringing of children in a number of cases, as illustrated briefly in the following two examples. In 1923, the Supreme Court was called upon to balance the interests of both parents and the state in the context of education in Meyer v. Nebraska. In Meyer, a teacher challenged a state statute prohibiting the instruction of foreign languages in any school, public or private. The Court overturned the law, holding that the act abridged upon both the parents’ and the teacher’s liberty interests. Instead of focusing on the children’s right to learn the foreign language, the Court focused on the parents’ right to raise their children as they saw fit and “the teachers’ rights to engage in an occupation.”

Two years later, in Pierce v. Society of Sisters, the Court once again addressed parental rights. In that case, the Supreme Court overturned a law requiring public education for all students. Resting its decision not on the child’s liberty interest, but again on the parents’ interest, the Court held that the statute at issue unreasonably interfered with the parents’ right to control the upbringing and education of their children. These cases highlight the rights of the state over the actions of parents and the rights of parents over the actions of the state.

While these cases balanced parental and state rights, a new series of cases focusing on children’s rights emerged during a period known as “The Domestication of the Juvenile Court.” These cases provided recognition that children also have rights under the U.S. Constitution. Addressing children accused of criminal and delinquent acts, courts started to focus on balancing a juvenile’s constitutional rights with the stated intent of the juvenile court system—providing rehabilitation and treatment to young offenders. For much of the twentieth century, the U.S. Supreme Court routinely examined the rights of children. Children gained protections under both the Constitution and international law.

Few cases have addressed the issue of privacy in the context of a parent’s decision to share personal information about their minor children. However, one case, Sidis v. F-R Publishing, addressed privacy in a context that could have applicability to modern parental sharing practices. Sidis, a child prodigy who came of age in the early 1900s, received national public attention during his minor years. However, when Sidis became an adult, he did not want to remain in the public eye, and he went to great lengths to live a private life. He did not like media attention and tried to conceal his identity through his lifestyle choices. Despite his preference, The New Yorker ran a story about Sidis’s life, providing the reader with intimate details about his secluded existence.

Sidis sued The New Yorker, arguing that he had a right to privacy under state law. However, the court disagreed. The court reasoned that Sidis was a public figure as a child. As such, the public was naturally interested in the story reported by The New Yorker. Despite his wish to retreat into the private sphere and remain hidden from media attention, the court held that remaining out of the public eye was not an option for Sidis, or for any other individual who once held the public spotlight. In its holding, the court recognized that while an individual such as Sidis had an interest in privacy, the public also had an interest in knowing about his life course.

The court ruled that since Sidis was in the public spotlight as a child, he would remain a public figure for the rest of his life. Interestingly, the court noted that there was a possibility that even as a child, Sidis loathed the public attention. However, the court held that “his uncommon achievements and personality would have made the attention permissible.” The article in The New Yorker answered the question of whether Sidis met the expectations of his young brilliance. The court ruled that his current life was indeed “a matter of public concern.”

While Sidis’s case was decided over seventy years ago, and the court’s reasoning drew from the text of Justice Warren and Justice Brandeis’s famous 1890 article, The Right to Privacy, it might provide scholars with guidance today. If a parent leads his or her child to Internet fame during their minor years, the case suggests that the child would always remain subject to privacy laws governing public figures. However, unlike generations who came of age before social media, today’s sharing practices offer an ever-expanding array of options for parents looking to place their child in the public eye. These young public figures might enter adulthood with little recourse, as Sidis found out over seventy-five years ago.

Taken together, these cases suggest that courts are sympathetic to a child’s interest in privacy but nonetheless give substantial deference to parents’ rights to control their child’s upbringing and the limitations of the right to privacy. These cases offer limited guidance with respect to how children’s privacy interests might intersect with parents’ rights to share their child’s personal information online, as today’s parental online sharing practices are novel in the legal sphere.

Current laws protecting children’s privacy reflect the strong tradition of parental rights to control and shape the lives of their children. Many laws aimed at protecting children’s privacy are written from the paternalistic viewpoint that the parent has exclusive control over the disclosure of a child’s personal information. Privacy laws provide little guidance, prohibitions, or remedial measures for children needing privacy protection from their parents’ online disclosures. This reality is partly based on the idea that society generally accepts the notion that parents will always do what is best for their children. In addition, these laws are designed to protect information about children generated outside the home, primarily in school and healthcare settings. In the context of these settings, parents are presumed to be the best guardians to insure protection of their children’s private information. These frameworks do not include social media sharing, nor do they consider a parent as a potential source of harmful disclosure.

B. Approaches to Children’s Privacy Interests and Rights

In her article, Hatching the Egg: A Child-Centered Perspective on Parent’s Rights, Barbara Bennett Woodhouse critiques commonly held beliefs regarding the role of parents in the upbringing of children. She suggests that parents should act as stewards rather than as owners with respect to their children. As such, one can imagine a system that values children’s rights to be free from parents’ public disclosures on subjects that may one day prove disadvantageous to children as at least equal to parents’ rights to publicly share about their child.

Children’s privacy scholars Professors Benjamin Shmueli and Ayelet Blecher-Prigat argue that “children should have an individual right for privacy against their parents” but that this right “should be qualified according to the child’s age and evolving capacities.” The scholars assert that, after years of media attention aimed at the risks posed by third parties online, society, acting under the guise of protecting children, often minimizes its recognition of a child’s privacy interest in online activities.

Their article states that “extensive scholarly engagement with conceptualizing privacy has been written almost entirely with the adult rights-bearer in mind and has paid no special attention to the application of the concept to children in general, and vis-à-vis their parents in particular.” Through their discussion of the importance of privacy for children in the family unit, the scholars opened the door to conversations centered at interfamilial privacy and its implications for children’s rights online. However, the article limited its discussion to children’s rights to privacy generally and left open the question of how these rights might interplay with a parent’s right to share the child’s story online.

One state offers additional protections to children to protect their privacy in the online context. For example, California is often recognized as being a leader in digital privacy protection and provides minors with the right to delete posts from online forums. “Kids and teenagers often self-reveal before they self-reflect,” so these laws protect children from information they post and provides them the right to later change their mind and delete the information.

Furthermore, the international community has recognized that children have privacy rights. The United Nations Convention on the Rights of the Child (UNCRC) specifically enumerates the child’s right to privacy. While the United States is now the only United Nations member country yet to sign onto the UNCRC, it suggests that amongst children’s rights and family law experts, a general consensus exists internationally recognizing that states should afford children the right to privacy. While children are still in need of protection from the state and their parents, the international community recognizes that their autonomous nature can be recognized at a young age. Interfamilial rights can be provided to children consistent with their evolving ability to appreciate and assert these rights.

One intriguing doctrine in European courts regarding online privacy is the doctrine recognized in 2014 known as the “right to be forgotten.” This doctrine effectively allows individuals to change their digital footprint. In a landmark ruling, based on the interpretation of the Data Privacy Directive (a European Union law), an individual (adult) filed a complaint against Google. He brought his complaint because he believed that the information retrieved by Google following an Internet search was not favorable or relevant to his current lifestyle—the information pertained to a debt that he had subsequently paid. The individual believed that he had a right to have the information removed from the Internet, because it was harmful to his reputation. He wanted it removed from or concealed within the newspaper stories and Google searches. The court agreed, stating that the information served to “compromise the fundamental right to data protection and the dignity of persons in the broad sense, and this would also encompass the mere wish of the person concerned that such data not be known to third parties.” Google appealed; however, the appellate court agreed with the lower court. The appellate court required Google to remove the contested information from its search results, but the court did not require the newspaper to remove the information from the Internet.

One commentator, Allyson Haynes Stuart, notes that the United States views public information such as the content at issue in the above referenced case as “speech,” and therefore the information is protected under First Amendment principles. European courts view the same information as data and afford individuals the right to request removal of such information “if the processing or storing of that information is no longer necessary.”

If parental social media sharing about their children is viewed as speech, courts are unlikely to afford a child relief under a model similar to the right to be forgotten unless the court also recognizes a child’s right to privacy in the sharenting context. The First Amendment issues raised by such a case, applied to parental social media disclosures, are significant. While this Article does not examine those issues in detail here, it is important to note that robust speech protections may well insulate parental online sharing of information about their children in addition to parental claims of exercising their parental rights.

Perhaps a strong argument could be made that by the time a child reaches maturity, disclosures made by parents about a child should instead be viewed as data. Under the right to be forgotten, young adults would be able to argue that information shared by their parents is no longer necessary and that the disclosures are potentially harmful to their overall well-being. If American courts were to recognize such a doctrine, the disclosures would warrant deletion at the child’s request.

C. A Public Health Model of Child Protection

Legal and medical professionals have offered protections to children not only through legal reform, but also via a public health model of child protection. The public health model attempts to effectuate change by educating professionals, the public, and parents about potential dangers facing children. A solutions-based approach offers safety through advocacy and is often an effective method of changing opinions and behavior. For example, when doctors learned of the risk stomach sleeping posed to newborn infants, the health community launched the “Back to Sleep Campaign” educating parents on the common stomach sleeping practice that increased the risk of SIDS in young babies. The campaign resulted in the dramatic dropping of SIDS rates.

Similarly, when doctors learned of the risk posed by secondhand smoke, pediatricians encouraged parents not to smoke around their children. Many parents followed the recommendation and adjusted their behaviors. Others failed to heed the warnings and continued to smoke around their children. In response, some states enacted laws prohibiting parents from smoking in their cars when children were present. In those states, policy makers likely determined that public discourse was insufficient to protect children from the significant harm caused by secondhand smoke.

A public health model could likewise work to educate parents about their use of social media consistent with the recognized need to protect children’s privacy. Child advocates in both the medical and behavioral arenas recognize that childhood well-being is not limited to traditional notions of health. Indeed, children who grow up with a sense of privacy, coupled with supportive and less controlling parents, fare better in life. Studies report these children have a greater sense of overall well-being and report greater life satisfaction than children who enter adulthood having experienced less autonomy in childhood. Children must be able to form their own identity and create their own sense of both private and public self to thrive as young people and eventually as adults. Through a public health model, parents can gain important knowledge as to how to share their own life stories online while also protecting their children’s privacy.

III. Legal and Public Health Approaches to Children’s Privacy

While there are laws in place that protect an individual’s privacy in some circumstances, laws do little to protect children from parental oversharing. Due to the legal pitfalls discussed below, this Article recommends the dissemination of best practices in accord with a public health model of child protection.

The vast majority of parents who share personal information about their children on the Internet do not intend to ignore their children’s well-being. They do so not because they care any less deeply about their children’s development and future opportunities, nor because they are malicious. Instead, parents often intrude on a child’s digital identity because they simply have not yet considered its importance.

Children have little to no recourse against parental oversharing for many reasons. First, children are expected to abide by the will of their parents. Second, children might lack opportunity to express their disdain or other feelings, such as embarrassment, humiliation, anger, or hurt. Finally, children might lack an understanding of the implications of their parents’ online conduct. As stated above, in this uniquely original circumstance, society is only now ready to receive, analyze, and understand data from the great social media experiment.

As children reach adulthood, parents often hope that their children will share similar values to their own. Parents may believe that their children will appreciate their detailed childhood online biography and likely assume that any disclosures were harmless. However, as Jeffrey Shulman states, “the expressive liberty of parents becomes despotic when the child is given no real opportunity to embrace other values and to believe other beliefs.” Children who grow up as the subject of their parents’ online disclosures will often have a Google search result that reflects the publicly shared identity of the child created by the parent. Childhood data could remain in Google’s search algorithm for years to come, and it could reveal itself in embarrassing ways during the course of a child’s lifetime.

As today’s children of social media reach adulthood, social scientists and childhood development experts will learn more about the perils of growing up under the watchful eye of a parent’s newsfeed. Society’s newfound knowledge will help advance the conversation and will perhaps encourage courts to recognize the unique privacy interest children surely have with regard to preserving their digital footprint. While the solution might indeed lie in court action, many scholars warn that conferring constitutional rights to children in the family context might be self-defeating and that perhaps a more immediate solution lies in tort actions or via a public health model. This Part outlines the limited legal solutions and the more promising public health approach to the present context of sharenting.

A. Available Legal Protections Are Ineffective

At the heart of sharenting is the difficult task of balancing a parent’s right to free expression (and parental rights generally) against a child’s privacy interest. These concepts are intertwined and can conflict with each other. This Article only intends to identify the possible legal protections available to children harmed by parental speech and to briefly outline potential remedies available to children through a right to privacy argument.

Federal privacy laws that apply broadly, and thus protect children, do exist. However, federal privacy laws typically provide exceptions so that information can be disclosed to, or even controlled by, a parent. For example, the Health Insurance Portability and Accountability Act (HIPPA) prohibits medical professionals from sharing personal information about patients of any age without written consent. For minors, parents provide written consent regarding with whom to share the minor’s private health information. The Family Educational Rights and Privacy Act of 1964 (FERPA) requires teachers and administrators to protect the privacy of a student’s educational records from everyone but a minor student’s parents. Moreover, some laws afford special privacy protections for minors. And a handful of laws specifically distinguish privacy protections for children as unique and not applicable to adults.

Many privacy laws prohibit third parties from disclosing a child’s personal information but also give parents a right to view and disseminate information when acting on the child’s behalf. For example, FERPA prohibits disclosure of a child’s academic record to anyone except the child’s parent or guardian. At first glance, FERPA appears to confer a privacy right on a child, but in actuality, the Act protects the child from public disclosures of educational information in all instances except when a parent wants to view or share the same data. FERPA therefore provides that the parent, not the child, owns the privacy interest in the record until the child reaches eighteen years of age, at which time the right is conferred onto the child.

The Children’s Online Privacy Protection Act (COPPA) of 1998 governs the gathering and disclosure of online data pertaining to children under the age of thirteen. Under COPPA, operators of websites targeted at children are prohibited from collecting personal information from a child unless the website first provides written notice of the website operator’s practice for disclosing such information. Additionally, the website operator is required to obtain parental consent for such collections. As such, the Act places the parent in the role of guardian and gatekeeper of the child’s personal information. Injured parties can bring a suit under the Federal Trade Commission’s protection against unfair or deceptive practices.

There are existing laws that protect children from abuse, a term that includes emotional harm. The state could show that the parental expression caused substantial harm to the child’s well-being, and the state could intervene to protect children from harm occurring in online forums. A state could seek a remedy through the dependency court or possibly consider obtaining injunctive relief precluding the parent from posting additional harmful content online. However, the child would have little control over these suits, as it is the state actor, not the child, who would bring forth this litigation. If the state did move forward in this manner, remedies could potentially require parents to delete offensive material from Internet sites they own, but this would do little to control the information shared on sites not owned or controlled by the parent. Additionally, these remedies would be ineffective in many cases where the material has been downloaded or shared by third parties and would offer little protection to a child who is already emotionally harmed by viral online disclosure. Furthermore, once information is shared, despite its future deletion, companies might retain the previously available data. There is no unringing the bell.

COPPA requires third parties to obtain parental consent before websites targeting children mine their personal information. FERPA and HIPPA prohibit third parties from sharing a child’s personal data without the consent of the parent until the child is eighteen and then requires the (former) child’s consent to release the same information. These federal laws recognize that children have an interest in maintaining privacy over basic information (e.g., name, address, age, grades, health and behavior records). In the context of parental sharing, the third-party actor is the parent, and therefore a conflict exists between the actor and the party authorized to give consent.

Potentially, one could set forth the legal argument that the state, in acting as parens patriae, should step in and enjoin parents from posting anything potentially revealing about children. However, a censorship argument of this type would likely fail as an unreasonable restraint against speech under the prior restraints doctrine. Instead, challenges to a parent’s online disclosure could likely be limited only in the extreme cases that severely injure a child’s emotional well-being or those instances that put a child’s physical safety at risk.

Tort law might provide another potential remedy to children. A review of the literature provides little guidance to children seeking a civil remedy for when parents violate their children’s privacy rights, as the parent–child immunity doctrine has historically received little attention in scholarly literature. Some states have abridged the doctrine or have done away with the doctrine entirely. Some scholars are recognizing that perhaps the doctrine is overly protective of parental rights. Herein lies perhaps the crux of the argument. Should parents have unfettered discretion to control the upbringing of children, even when such control will eventually dictate children’s ability to create their own identity apart from the parent?

When an individual discloses personal information about another person, absent a legal privilege, the other person is not protected under traditional notions of American privacy laws. However, an individual may find recovery if the public disclosure involves information that “would be highly offensive to a reasonable person” and is “not of legitimate concern to the public.”

Most importantly, seeking redress through injunctive relief or civil liability leaves open the reality that digital information has the potential to be reshared across various websites between the time the parent posts the information and the time the child comes of age and sees the digital trail. For while some parents only share on social media (and much of that information will not be reshared by others), some of the information will end up on social media platforms and Internet sites not controlled by the parent. In those circumstances, the children will not simply be able to ask their parent to remove the information they wish taken off the Internet.

Next, this section discusses what would happen if the United States adopted the approach of the right to be forgotten and how it may be the best approach to protect children. Indeed, as these children view the disclosures, it is likely that many will value the opportunity to keep their private information (information generally protected from third-party disclosure by COPPA, FERPA, and HIPPA ) out of the public domain.

Legal scholars might find that children are without tangible recourse in existing U.S. jurisprudence. However, the European Union’s recognition of an individual’s right to be forgotten could offer courts and scholars guidance for legal reform. In some circumstances, the content of parental disclosures in many ways resembles the data that COPPA, FERPA, and HIPPA protects. Even if a court viewed the data as parental speech, perhaps courts could balance these competing interests by, upon request of a child or adult, requiring search engines such as Google to remove childhood data (initially shared by a parent regarding a minor child) from showing up in an online search of the individual’s name.

Removal of data is precisely what the European Union required in its leading right to be forgotten case. Indeed, this requirement may prove to be the most promising legal solution available to remedy the harm caused by a parent’s online disclosure of a child’s personal information. The right to be forgotten, if available in light of the Supreme Court’s decision in Near v. Minnesota, could provide the child with the type of “clean slate” envisioned by Eric Schmidt.

The right to be forgotten recognizes that as time passes, the value of the disclosure is minimized and must make way for the competing privacy interests of the child. When a parent shares information about a child online, the expressive purpose of the disclosure diminishes as the child ages. The right to be forgotten allows parents the freedom to talk about their children on social media and blogs. It also does not infringe on parental right to freely express his or her views on parenting, and it allows parents to control the dissemination of information about the child as a member of the family unit. Furthermore, it supports a parent’s right to free expression.

Under current U.S. privacy laws, individuals are not required to provide blanket consent when authorizing agencies to share personal information. Instead, the laws recognize that an individuals might want to allow the release of their information for only a limited period to a limited audience. By utilizing policies such as the right to be forgotten, courts could recognize that children have an evolving ability to provide consent. Under this theory, courts could hold that young children vicariously consent to parental disclosures, but as children age, they should gain more control over their personal information. Indeed, the expressive nature of the parental disclosures become data (instead of speech) as the child reaches the age of majority. The proposed definition is consistent with the European Union’s definition of online content, and it recognizes the importance of individual autonomy. It also allows individuals to control “which information about themselves . . . [remains] disclosed, to whom and for what purpose.” This balanced-rights approach offers solutions to the conflicts that arise between children and their parents in the online world.

B. Best Practices Informed by Public Health and Child Development Literature

This Article recognizes that while the law can address parental (over)sharenting at the margins, reform can also take place in a manner similar to the public health model. A public health model would proceed through health professionals disseminating best practices to parents to improve the health of their children. Below are guidelines of what these best practices may look like.

It is likely that online sharing is here to stay, and unless the next generation of young adults enter adulthood outraged en mass by their parents’ choice to share personal information, it is likely that children in the future will have no protection against their parents’ decision to post their personal information online. Unless public attitudes change, the few children who do take issue with their pre-formed digital footprint will likely have no recourse as a matter of law or in the court of public opinion.

Sharenting clearly has many benefits. Sharing common parenting experiences brings communities together and helps connect similarly situated individuals around the globe. Parents certainly do have an interest and right to freely express their life story, and children are often central in that story’s cast of characters. However, with each parental disclosure, a bit of the child’s life story is no longer left for the child to tell under her own terms. Equally important to the right of the child to one day narrate her own story, is the child’s right to choose never to share the information at all.

Given the difficulties and complexities of legal solutions and their practical limitations, a proactive public health solution may be the better way forward. While the law might never offer children complete protection from their parents’ choice to disclose personal information online, society is beginning to recognize that there are inherent safety and moral risks involved in many of today’s common parental sharing practices. In response to these risks, the following best practices should become mainstays in societal discourse.

In a manner similar to the public health models discussed above, these practices could be shared with parents, educators, pediatricians, policy makers, and the media. These best practices draw upon the wisdom of child psychologists and medical professionals, as well as research from top child safety advisors, those working in the field of child abductions and sexual abuse, and social media and Internet experts.

This Article offers the first coherent package of best practices through a legal lens. The proposed model reflects the importance of a parent’s right to free expression but also encourages parents to consider sharing only after weighing the potential harm of the information. Indeed, these best practices should not be seen as rules but as suggestions for parents inclined to use the Internet in a way that will foster healthy child development. Parents should consider the objects of their disclosure, their children, as autonomous persons entitled to protection not only from physical harm (such as the harm posed by pedophiles and identity thieves), but also from more intangible harms such as those that may come from inviting the world into their children’s lives without first obtaining informed consent.

1. Parents Should Familiarize Themselves with the Privacy Policies of the Sites with Which They Share

Many social sharing sites offer users the ability to select the specific audience for each photo or post shared. Additionally, some social sharing sites give users the option of setting passwords and having their online content hidden from Google’s search algorithm. Parents should always be cognizant of the inherent risks of website security breaches and the potential for a particular site to change or violate its policy without consent of the user. Understanding these policies is an important first step for families who wish to share with friends and family while limiting the future audience of their posts.

2. Parents Should Set Up Notifications to Alert Them When Their Child’s Name Appears in a Google Search Result

Despite the risks, many parents will choose to blog about their children publicly. As discussed above, parents choose to share publicly for a number of reasons, and it is unlikely that these practices will end without a significant shift in the public’s attitude and response to these disclosures. Once parents decide to share information online, they are unable to limit the reach and lifespan of the information. However, in many cases, parents can set up alerts to track where the information appears and monitor responses and third-party changes to their disclosures. Parents can evaluate the website and determine if the shared content is appropriate.

3. Parents Should Consider Sometimes Sharing Anonymously

Some organizations host websites providing advice and support networks to parents. These well-intentioned sites often invite parents to share their stories in the hopes of helping other parents similarly situated. As in the example of the mother raising the mentally ill child, these parents are often well-intentioned when sharing their child’s struggle, yet their online disclosures require them to tell their stories in a manner that necessarily revolves around the child’s struggle. However, parents can share and connect without disclosing their names or names of their children.

4. Parents Should Use Caution Before Sharing Their Child’s Actual Location

Parents should be mindful that their intended audience, whether public or limited in some manner, might not always act with good intention. While child abductions and stalking originating online are rare occurrences, the risk is heightened when personal information is shared and potential offenders not only have detailed information about a child’s life, but also know the child’s actual physical location and the family’s routine. Parents should not only limit descriptively sharing the child’s location in their posts, but should also shut off their phones’ GPS before sharing digital information on social media and blog sites, thus avoiding the inadvertent disclosures of such data online.

5. Parents Should Give Their Child “Veto Power” over Online Disclosures, Including Images, Quotes, Accomplishments, and Challenges

By age four, children have an awareness of their sense of self. At this young age, they are able to build friendships, have the ability to reason, and begin to compare themselves with others. Parents who post regularly can talk about the Internet with their children and should ask young children if they want friends and family to know about the subject matter being shared. As is the case in many aspects of children’s rights, the weight given to the child’s choice should vary with respect to the age of the child and the information being disclosed. But parents should be mindful that even young children benefit from being heard and understood.

6. Parents Should Consider Not Sharing Pictures That Show Their Children in Any State of Undress

Including newborn and bath photos, parents should consider limiting the audience of naked photos and even photos of their child wearing a bathing suit or similarly scant attire. While most view these images as “cute” and innocent, these images are easy targets for pedophiles and perhaps those wishing to profit from others seeking images of children. In fact, Australia’s eSafety Commissioner reports that almost half of all images found on the pedophile image sharing site he reviewed were originally posted with a parent’s innocent intent on social media and family blogs. Cyber-safety expert Susan McClean states, “[i]f you live your life vicariously through your kids online and you use photo-sharing sites and hashtags, you have to got to [sic] understand that that photo is worth something to someone else and it may not be for a purpose you like.”

7. Parents Should Consider the Effect Sharing Can Have on Their Child’s Current and Future Sense of Self and Well-Being

First, parents must consider that one day their children will likely come face-to-face with their parents’ past online disclosures. Even when parents limit the audience of posts, the full reach of the Internet is far greater than many users consider. Deleted posts might have been saved before deletion. Moreover, “friends” today can later intentionally or inadvertently share information with the child or third parties even when the information was originally intended for a small audience.

Second, parents must consider the overall effect sharing has on a child’s psychological development. Children model the behavior of their parents, and when parents constantly share milestones, monitor their social media accounts for likes and followers, and seek out recognition for what was once considered mundane daily life, children take note. One study found that by “[e]nacting the value of fame, the majority of preadolescent participants use online video sharing sites (e.g., YouTube) to seek an audience beyond their immediate community.” Children absorb messages from many sources, including the media and their parents, and are likely to mimic observed behaviors in adolescence and adulthood. When children see their parents sharing personal information in the public sphere, they will likely get the message that a public approach to sharing personal details about their lives is expected and appropriate. Oversharing in adolescence can create issues for the child’s reputation on into the future.

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Parents have wide latitude to direct and narrate their child’s story with almost unfettered control. Sharenting includes a moral obligation to act with appropriate discretion and with full regard for the child’s safety and well-being. It is likely that parents will continue to carve out their children’s digital footprints long before they take their first step. Parents, acting in the best interests of their children, can act as shepherds of their children’s online privacy until the children assume ownership over their digital identities.

Conclusion

Becky, Johnny, and Emily—the children mentioned in this Article’s Introduction—will likely one day learn about their parents’ online disclosures. At that time, they will each form an opinion as to the digital footprint created about them during their childhood. Unlike disclosures made by third parties, the individuals responsible for sharing the children’s information are the same people tasked with protecting the children’s privacy: the parents. These children might have legal arguments that could offer them privacy protections from their parents’ online disclosures, but it is also possible that a public health model will offer them even better protections while respecting family autonomy. Similar to the online decisions children will one day make on their own accord, the digital information has the potential to follow them throughout life. This Article encourages scholars, policy makers, and parents to reconsider the ways society views childhood and privacy in the digital age. By exploring sharenting, this Article provides the framework to do so in the children’s rights, privacy, and public health contexts and ripens sharenting as an under-investigated issue ready for further discussion.

Untangling the parents’ right to share about their children and children’s right to enter adulthood free to create their own digital footprints is a challenging task. This task requires “[a] [c]hild-[c]entered [p]erspective on [p]arent’s [r]ights.” Currently, no policy offers these children a way to address the conflict created when their parents decide to disclose personal information about them to the watchful eyes of the parents’ newsfeeds. Additionally, the first children of social media are just now entering adulthood, college, and the job market. The time is now to take a hard look at sharenting. By approaching a child’s right to online privacy in a child-centered manner, future generations will be able to enter adulthood unburdened by others’ decisions and free to define themselves on their own terms.

Author Note:

A confession to those reading this: the author’s interest in sharenting and desire to look deeper into the practice found its genesis in self-reflection. In addition to being a legal scholar and advocate for children, the author is a professional photographer and user of social media. In no small part, her personal experiences in sharing pictures of her children and, with the permission of their parents, sharing photographs of other children, led to a desire to reflect on the impacts of such behavior. To that end, the author set off to explore whether there exists a better way to share our stories as parents while at the same time protect our children’s privacy interests. Therefore, the author hopes that what is contained in this Article is not taken as preachy or damning of other parents who, as stated herein, almost always have nothing but their children’s best interests at heart.

Footnotes