Abstract
This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show that there are three major legal roadblocks for such a case to succeed in U.S. law. First, U.S. privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the U.S. is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
The original video of the “Star Wars Kid” remains on YouTube, as well as the comments posted in response to it.
- 2.
For the purposes of this paper, I use “child” to denote a relationship (i.e., with a parent), and “minor” to denote a person under 18.
- 3.
Richards and Solove (2010), p. 1916 think that this case embraced Warren and Brandeis’ view, even if it was not exactly the tort they had in mind, whereas Prosser’s appraisal of it divorces it from Warren and Brandeis, and from the other privacy torts altogether.
- 4.
Unlike Warren and Brandeis, who were highly educated in the European tradition, it is not surprising that Jerome Frank, a notable legal realist, would articulate a tangible basis for privacy, rather than privacy as protecting the intangible attributes of the self that make up one’s personality.
- 5.
For a particularly powerful statement of this view, see Bloustein (1964).
- 6.
For the doctrinal adoption in the law, see American Law Institute (1979, §§ 652B, C, D, E).
- 7.
Aside from celebrity children, children typically lack a commercial interest in their image, and while the privacy rights of celebrities is related, it is outside the narrow scope of this essay. Moreover, even intimate or embarrassing images of children are unlikely to be considered highly offensive to a reasonable person, unless they are of a clearly sexual nature or depict abuse. Again, although related, this paper is not concerned with such cases, as they would constitute independent criminal activity.
- 8.
In light of how quickly online information can spread, if parents share images of their children with others who then download and share it themselves, the question of suppression then involves the freedom of speech of these other individuals as well. Some acts of appropriating and sharing images of children is illegal, however, as when pedophiles download children’s images and upload them onto to pedophilia sites. Because this is the domain of the criminal law, I am not focusing on it here.
- 9.
In every U.S. state, children of all ages have the right to consent on their own to testing and treatment of sexually transmitted infection (STIs). See Hasson (2013).
- 10.
I thank Ann Cudd for bringing this similarity to my attention.
- 11.
The following cases upheld broad parental authority: Troxel v. Granville (530 U.S. 57, 2000); Parham v. J. R (442 U.S. 584, 1979); Quilloin v. Walcott (434 U.S. 246, 1978); Wisconsin v. Yoder (406 U.S. 205, 1972); Pierce v. Society of Sisters (268 U.S. 510, 1925); Meyer v. Nebraska (262 U.S. 390, 1923). For a general discussion, see Hamilton (2006).
- 12.
- 13.
Erikson (1950) identified adolescence (or the period between ages 13 or 14 to about 20) as the period of the fifth psycho-social crisis, “Learning Identity versus Identity Diffusion,” where the child, now an adolescent, learns how to answer questions about his or her own identity, thus making it an impressionable stage of ego-development.
- 14.
- 15.
See Bilton (2014) for a deeper discussion of Facebook’s recent efforts in this area.
References
Allen A (2015) Who’s watching you? The New Philosopher. http://www.newphilosopher.com/articles/whos-watching-you/. Accessed 16 June 2017
American Law Institute (1979) Restatement (second) of torts, 3rd edn. American Law Institute Publishers, St. Paul
Balingit M (2015) Millions of teens are using a new app to post anonymous thoughts, and most parents have no idea. Washington Post. https://www.washingtonpost.com/local/education/millions-of-teens-are-using-a-new-app-to-post-anonymous-thoughts-and-most-parents-have-no-idea/2015/12/08/1532a98c-9907-11e5-8917-653b65c809eb_story.html?utm_term=.933000c3b499. Accessed 16 June 2017
Bilton N (2014) Meet Facebook’s Mr. Nice. New York Times. https://www.nytimes.com/2014/10/23/fashion/Facebook-Arturo-Bejar-Creating-Empathy-Among-Cyberbullying.html. Accessed 16 June 2017
Bloustein E (1964) Privacy as an aspect of dignity: an answer to Dean Prosser. N Y Law Rev 39:962–1007
Chazan D (2016) French parents ‘could be jailed’ for posting children’s photos online. The Telegraph. http://www.telegraph.co.uk/news/worldnews/europe/france/12179584/French-parents-could-be-jailed-for-posting-childrens-photos-online.html. Accessed 16 June 2017
Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501–6505. https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule. Accessed 16 June 2017
Erikson EH (1950) Childhood and society. Norton, New York
Flint H (2014) French privacy laws: how strict are they? The Telegraph. http://www.telegraph.co.uk/news/worldnews/europe/france/10564442/French-privacy-laws-how-strict-are-they.html. Accessed 16 June 2017
French Legislation on Privacy (2007). http://ambafrance-us.org/spip.php?article640. Accessed 16 June 2017
Hamilton VE (2006) Principles of U.S. family law. College of William & Mary Law School Scholarship Repository
Hasson MR (2013) Youth rights and the shrinking power of parents. In: The Family in America. Ethics and Public Policy Center. https://eppc.org/publications/youth-rights-and-the-shrinking-power-of-parents/. Accessed 16 June 2017
Hiniker A, Schoenebeck SY, Keintz JA (2016) Not at the dinner table: parents and children’s perspectives on technology rules. Paper presented at the proceedings of the 19th ACM conference on computer-supported cooperative work & social computing, San Francisco, February 27–March 2, 2016. https://pdfs.semanticscholar.org/9e5c/57379ef500a1137ac7e2e366e22e42bb0a25.pdf
Lee J (2015) Parenting & “sharenting”: the opportunities and risks of parenting in the social media age. University of Michigan Institute for Healthcare Policy and Innovation. http://ihpi.umich.edu/news/parenting-“sharenting”-opportunities-risks-parenting-social-media-age. Accessed 16 June 2017
McCarthy JT (2000) The rights of publicity and privacy. Thompson Reuters, Eagan
Meet the anonymous apps that are bringing cyberbullying to your teens’ school. Scholastic Choices. http://choices.scholastic.com/blog/meet-anonymous-apps-are-bringing-cyberbullying-your-teens-school. Accessed 16 June 2017
PH (2014) Anonymous social networking: secrets and lies. The Economist. http://www.economist.com/blogs/schumpeter/2014/03/anonymous-social-networking. Accessed 16 June 2017
Prosser W (1955) Handbook of the law of torts, 2nd edn. West Publishing, St. Paul
Prosser W (1960) Privacy. Calif Law Rev 48:383–423
Richards NM, Solove DJ (2010) Prosser’s privacy law: a mixed legacy. Calif Law Rev 98(6):1887–1924
Saarinen M, Ladousse J (2017) Privacy in France: overview. http://us.practicallaw.com/7-573-6346. Accessed 16 June 2017
SB 568 (California Business & Professions Code Sec. 22581)
Solove DJ (2010) Speech, privacy, and reputation on the internet. In: Levmore S, Nussbaum M (eds) The offensive internet: speech, privacy, and reputation. Harvard University Press, Cambridge
Steinberg N (2017) Sharenting: children’s privacy in the age of social media. Emory Law J 66:839
Szalavitz M (2010) How not to raise a bully: the early roots of empathy. Time. http://content.time.com/time/health/article/0,8599,1982190,00.html. Accessed 16 June 2017
Tribe LH (2015) Equal dignity: speaking its name. Harv Law Rev 129(16):16–32. http://harvardlawreview.org/2015/11/equal-dignity-speaking-its-name/. Accessed 16 June 2017
Turkle S (2011) Alone together. Basic Books, New York
Turkle S (2015) Reclaiming conversation: the power of talk in a digital age. Penguin Books, New York
Warren S, Louis B (1890) The right to privacy. Harv Law Rev 4(5):193–220
Weissbourd R (2014) Bullying prevention: the power of empathy. Huffington Post. http://www.huffingtonpost.com/richard-weissbourd/bullying-prevention-the-power-of-empathy_b_6171238.html. Accessed 16 June 2017
Whitman JQ (2004) Two western cultures of privacy: dignity versus liberty. Yale Law J 113(6):1151–1221
YouTube. Star Wars Kid. https://www.youtube.com/watch?v=HPPj6viIBmU. Accessed 16 June 2017
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Souris, R.N. (2018). Parents, Privacy, and Facebook: Legal and Social Responses to the Problem of “Over-Sharing”. In: Cudd, A., Navin, M. (eds) Core Concepts and Contemporary Issues in Privacy. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-74639-5_12
Download citation
DOI: https://doi.org/10.1007/978-3-319-74639-5_12
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-74638-8
Online ISBN: 978-3-319-74639-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)