Pixels and Privacy: The Evolving Legal Framework for Protecting Children's Digital Rights in the Sharenting Era

12.12.2024

The Rise of Visual Documentation: A Cultural Shift

The 1980s and 1990s marked a significant shift in cultural practices, characterized by an unprecedented obsession with visual documentation. This era saw the proliferation of print photographs and video recordings, meticulously catalogued in albums and on tapes. These artifacts of personal histories, once cherished, now often lie dormant in storage spaces or are rendered obsolete by technological advancements, invoking nostalgia and at times, discomfort. The practice of preserving childhood memories through photography, while well-intentioned, has given rise to complex ethical and legal questions in our contemporary society. Many individuals find themselves grappling with the embarrassment of having their formative years immortalized in images they never consented to—be it in fancy dress competitions, gender-bending costuming, or in a state of undress. The casual sharing of such images by well-meaning parents raises profound questions about the boundaries of privacy, consent, and the long-term psychological impact of such disclosures.

The tension between parental prerogative and individual privacy rights has come to the forefront lately, highlighting the need to reconsider the ethical implications of childhood photography. Where does one draw the line between harmless familial banter and the infliction of serious psychological distress? How do we balance the right to privacy with the right of parents to document and share their children's lives?

The Nirvana "Nevermind" Album Cover Controversy

These questions have transcended the realm of personal discomfort and entered the judicial arena, as exemplified by the recent lawsuit involving Nirvana's iconic “Nevermind” album cover. Spencer Elden, the man whose baby photo graces the cover of Nirvana’s groundbreaking 1991 album, filed a lawsuit in August 2021 against former band members and others involved in the album’s production. Elden, now 30, alleged child exploitation and pornography, seeking $150,000 in damages. The iconic image, which features a naked baby swimming towards a dollar bill on a fish hook, has been a subject of controversy and admiration for decades.

This case has garnered significant attention due to the iconic status of the album cover and the complex issues surrounding consent, art, and exploitation. It is worth noting that the outcome of the case was decided on a procedural issue (missing a deadline) rather than a ruling on the merits of the arguments presented.

The Elden case highlights a broader phenomenon known as “sharenting,” a combination of “sharing” and “parenting,” which refers to the common practice of parents posting personal information and photos of their children on social media. While often done with harmless intention, this trend raises important questions about children’s privacy rights. Generation Z parents frequently share content on platforms like Instagram, WhatsApp, and Snapchat. However, many fail to consider the privacy implications and future consequences of sharing their child’s personal information online. It is important that parents be aware of the possible risks associated with exposing their children in the digital world.

Long-term Consequences of Sharenting

As children grow older, they may want to control their online presence, but sharenting can have lasting effects. The ongoing trial of Spencer Elden highlights the potential risks of early exposure and raises concerns about child privacy violations and emotional harm. Sharenting also creates a non-consensual digital footprint for children, potentially affecting their future control over their online identity. This practice can negatively impact children’s emotional well-being and self-esteem, especially when the potentially embarrassing content is shared.

Another issue is commercial exploitation, where social media influencers and bloggers monetize children’s images and videos, thus, raising ethical concerns about profiting from children’s images without their consent and the long-term effects on their privacy and autonomy.

Children's Rights and the UN Convention

The United Nations Convention on the Rights of the Child (UNCRC) outlines several rights that sharenting can potentially violate, including children’s right to privacy and to be forgotten. These rights may be compromised when parents share sensitive details or images of their children without their permission.

The Right to Privacy in India: Constitutional and Legal Perspectives

In India, the right to privacy of children has actively been recognized under constitutional and civil protections. Article 21 of the Constitution protects the life and personal liberty of all individuals in India. In the landmark judgment of Justice K.S. Puttaswamy (Retd) v. Union of India, the Hon’ble Supreme Court unanimously held the right to privacy as a fundamental right. This recognition implies that children have the fundamental right to not have their pictures or information shared online or otherwise. However, the enforcement of this fundamental right against private individuals, particularly parents, raises complex legal questions. In such cases, it is the State that must act as the guardian of the child’s rights and the judiciary must intervene when the state fails to do so. The Constitution enshrines the right to file writ petitions in High Court and Supreme Court upon the violation of their fundamental rights. Children who were subjected to domestic abuse, have sought court protection against the actions of their parents by filing the writ of Habeas Corpus through legal representatives. In the digital age, children may feel abused if their parents frequently overshare children’s personal information. The right to privacy of a child, with respect to sharenting, must be respected within the family.

If a child is harmed by sharenting, they may seek legal relief. High Courts, with a broader jurisdiction under Article 226, can address issues related to fundamental and other legal rights, allowing children to pursue writ petitions or Public Interest Litigations to protect their privacy and civil liberty. While parents might argue that their right to freedom of expression under Article 19(1)(a) permits them to share content about their children, this right is subject to reasonable restrictions, especially when it infringes on the child’s right to privacy. The policymakers and the legislators need to take reference from the Directive Principles of State Policies, specifically Article 39 (f) that guides the state to make policies for the children “…to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment”

In cases of excessive sharenting, where a child feels uncomfortable with parents sharing their personal information to the extent that it causes unreasonable interference in their enjoyment, it can constitute a nuisance and relief can be sought by filing a civil suit. Many parents who are social media influencers or content creators use their children for views and post recordings without the child’s knowledge. The children can sue the parents for negligence (breach of duty of care) if the information or pictures shared by the parents online causes them agony or subjects them to abuse.

Legal Remedies for Children Affected by Sharenting

Order 32 of the Civil Procedure Code, 1908,  provides mechanisms for minors to file suits in their own name through a “next friend,” usually a natural guardian (parents), or one appointed by authorities. However, if the next friend's (guardian/parents) interests conflict with those of the child, the court can appoint another next friend among its officials to represent the child's best interests.

France has pioneered in framing a legislation aimed at preventing parents from sharing their children’s images and information online without the consent of the child. If and when Indian courts establish similar legal protections, they would need to carefully delineate the extent of a child’s right to privacy, balancing it with the parental duty to ensure the child’s well-being. The law must prevent the misuse of privacy rights in ways that could hinder parents from performing their protective roles, such as monitoring a child’s activities for their safety.

As the digital landscape evolves, so must the legal frameworks to protect the rights of the most vulnerable, including children, from the potential harm that sharenting can cause. In conclusion, sharenting highlights the importance of safeguarding children’s rights in the digital age. While the Indian Constitution does not explicitly address a child's right to privacy, principles of such protection can be inferred from Article 21, which guarantees the right to life and personal liberty. India's ratification of the UNCRC further emphasizes the need to protect  privacy rights of children.

Conclusion: The Need for Evolving Legal Frameworks

As sharenting practices evolve, there is a growing need for increased awareness, clear guidelines, and potential legislation to uphold children's best interests. Balancing parental rights, children's privacy, and legal obligations within the Indian context requires a comprehensive approach to address the complexities of sharenting and ensure children's well-being in the digital era. The existing legal framework in India, including provisions under the Information Technology Act, 2000, and the Juvenile Justice (Care and Protection of Children) Act, 2015, can potentially be invoked to address issues related to online abuse or exploitation of children. Interestingly, The Digital Data Protection Act, 2023 appears to protect the autonomy of the child and personal data of the child, however, Section 9(1) of the Act requires the officer to get consent of parents before processing any personal data of the child, which under normal scenarios is justified, however, in case of sharenting, defeats the purpose of ‘data protection’ by not separating the personhood of the child from their parents. It is crucial for policymakers, legislators, and stakeholders to work towards establishing robust legal protections and guidelines to protect children from the risks associated with sharenting while upholding their rights and dignity as enshrined in international conventions like the UNCRC.

Authored By: Sapreet Gill and Tania Singh, Assistant professors of law at University Institute of Legal Studies, Punjab University

Edited By: Ojasi Gopikrishna and Manush Dadlani