"Ted’s parents have broadcast photographs to all their friends and their friends’ friends on Facebook, MySpace, YouTube, Twitter, starting with a scan of him inside the womb." Credit: Pixabay/LoboStudioHamburg/383 images. Public domain.Ted is 18 years old. He has spent his whole life online, posting pictures on social media, chatting with friends and catching up on everybody’s news. He has a comprehensive digital identity, as well as a real-life one. A fairly regular 21st-century kid.

But here’s the rub: much of that digital identity was created without his consent. From the moment he was born, Ted’s parents have broadcast photographs to all their friends and their friends’ friends on Facebook, MySpace, YouTube, and Twitter, starting with a scan of him inside the womb. They have published seminal developmental moments: his first steps, his first words, his first day leaving for high school. They have asked questions, embarrassing ones, about his baby bowel movements on online forums. 

Ted’s entire life is available to see online. And now, having reached an age where he can decide for himself, he has decided to sue the people responsible for what he has come to see as a violation of his privacy: his parents. 

Ted is not a real person. But he could be. Indeed, he will be, in the not too distant future, according to French legal experts who are warning parents that the dangers of over-sharing online are not just about whether images fall into the the hands of paedophiles. They are also warning parents that their offspring could sue them when they come of age for having breached their right to privacy by posting pictures of them as children online. 

Éric Delcroix, an expert on internet law and ethics, told Le Figaro: “In a few years, children could easily take their parents to court for publishing photos of them when they were younger.” Parents could face a year in prison and a fine of €45,000 if convicted of publicising intimate details of the private lives of others — including their children — without their consent.

These questions are a long way from being answered

Experts such as Delcroix and Blandine Poidevin, of the law firm Jurisexpert, agree that online posts by parents of their children potentially breach Article 9 of France’s Civil Code, which provides that "everyone has the right to respect for his or her private life".  So on what exact basis could the children sue? The number of photos could be an “aggravating factor” Delcroix says, or the type of photo. Is it embarrassing or damaging to the child’s career? Does it simply erode that child’s ability to form an identity of his or her own?  

As I researched this piece it became clear that all of these questions are a long way from being answered and many experts I approached were unwilling to go on the record because of the embryonic nature of this type of legislation. They did however all concur that the issue throws up very important questions about our views on privacy and how it is policed. 

"Definitely a human rights issue" 

In the UK, privacy protection laws are less stringent than across the Channel – the courts tend to prioritise the right to freedom of expression more than their Gallic counterparts. However, the moral question mark over the online privacy rights of children could well become a legal concern in the UK too.  

“This is definitely a human rights issue,” says Yair Cohen, founding partner of social media and internet law firm Cohen Davis, who points out that the European Convention on Human Rights (ECHR) has been scrutinising the right to privacy in recent years and last year published a “factsheet” specifically regarding the “right to the protection of one’s image.”

A person’s image, the factsheet says: “constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.”
Photographs of you are an intrinsic part of your identity and that you have a fundamental right to how those pictures are taken, distributed and publishedAt its most basic, this bit of legalese means that photographs of you are an intrinsic part of your identity and that you have a fundamental right to how those pictures are taken, distributed and published. And importantly, Cohen points out, Article 8 of the ECHR specifically defines your right to privacy as starting the moment you are born.

It is something I thought a lot about when my own son, now a year old, was born, though in a more abstract sense. I simply felt strongly that he hadn’t given me permission to publish his life before he had lived it. And so my husband and I decided not to post very much about him at all. 

My husband posted a single photo of us on the hospital ward to announce his birth. As hundreds of likes and ecstatic comments clocked up, many of them from people I didn’t even know, I felt a simultaneous burst of motherly pride and shock that my son’s first moments on earth had been witnessed by people outside our inner circle. This moment confirmed for us our serious desire to limit the extent to which our children appeared online, until they could make that decision for themselves. 

It has been extremely hard to explain this to people. Many relatives and friends seemed to think we were being difficult when we explained that not only were we not going to post many photographs of our children online, but that we would rather they didn’t post much about them, or tag them in photos, either. There was a suggestion that we were denying people we didn’t see much (which is almost everyone when you’ve just had a baby) the ability to watch someone they cared about grow up. 

Speaking to friends who live abroad and feel similarly to us on this subject, it’s a really big problem for those whose family live very far away. The fact that there are many other, more private ways to share photos, such as WhatsApp or the photo-sharing site Lifecake, does not seem to make a difference.

“Part of the difficulty for the courts and for legislators is that society is not ready for privacy protections of this nature,” says Cohen. “Publication of family moments that would have been deemed private before is now so widespread that not doing it is considered odd. I am a parent and I have said to my children’s drama school in the past that I don’t want pictures of them on the school Facebook page. The consequence has been that my children are put to the back of the queue when there are performances that are later posted online.”

Do parents know best?

The real difficulty in changing the law is that there is a presumption that parents know best, says Dr Julia Hörnle, a Professor in Internet Law at Queen Mary University in London. “There have of course been many cases where newspapers have published pictures of kids and the parents have sued for privacy infringement. Generally speaking children have a higher standard of protection until they are 18.”

But it is of course the parents who sue newspapers on their children’s behalf. In the US, the collection of someone’s personal data online is prohibited for children under 13 without their parents’ permission by the 1998 Children’s Online Privacy Protection Act. It is for this reason that Facebook prevents children under that age from having their own account. “We assume that parents are protecting their children’s privacy,” adds Dr Hörnle. “But even if children don’t have their own account, their entire life may be all over social media, posted by someone else.”
Social media platforms themselves could be held responsible for not protecting the privacy rights of childrenThe French Civil Code specifically defines parental responsibility as allowing for the child’s 'personal development'. Going back to that ECHR factsheet, we can see it points out specifically that the right to the protection of one’s image is 'one of the essential components of personal development'. But the law in England (and indeed the other places discussed in this article) makes no such provision. Before the age of 13, how can children make a decision? Their parents must decide for them. So how could those parents possibly be held responsible later for the (totally legal) decisions they took on their offspring’s behalf?

“It does seem unlikely to become a legal issue if parents simply agree to take down the images straight away when asked,” says Cohen. What seems more likely in the UK and the US, various people suggest, is that the social media platforms themselves could be held responsible for not protecting the privacy rights of children. If, for example, college recruiters or employers found something in an applicant’s past that had been thoughtlessly posted by a parent and which put them off that applicant: an undisclosed medical condition, for example. 

“I think the law lags behind because it’s difficult to see exactly what we’re trying to protect or prevent here,” says Dr Hörnle, summarising just how thorny and blurry this area is, both morally and legally. “If a case comes along that makes that clear it could set an interesting precedent.” 

As an example, she cites revenge porn. A law prohibiting sharing sexually explicit pictures of former partners without their consent was finally passed in the UK last year after several high-profile cases argued that current privacy protections were insufficient. Within six months nearly 200 cases had been reported to police, a huge increase. Perhaps the same could happen with children’s online privacy rights, she suggests. A few big cases could blow the whole thing wide open. 

For young people, privacy matters

Before I got stuck into the question of how likely legislative change was for this article, I asked quite a few young people what they themselves thought about the whole thing. Some were bothered; some didn’t seem to care. But crucially none of them were young enough to have been part of a generation whose journey from the womb to graduation exists online. Facebook reached the UK in 2005; Twitter in 2006. The first children whose parents began posting pictures of them at birth are only just becoming teenagers now. 

It’s easy to assume that children who have grown up with the internet, surrounded by social media, don’t actually care about privacy. But there is significant statistical evidence that they do. Valerie Steeves, an Associate Professor in the Department of Criminology at the University of Ottawa and an expert in the impact of technology on human rights, conducted a report in 2014 called ‘Young Canadians in a Wired World’. The report found not only that 89% of students thought it was wrong for a friend to post a bad/embarrassing picture of them, but also that 54% thought friends should ask first before posting a picture of them at all. For French-speaking students in Quebec, nearly three-quarters of students thought it was wrong not to ask first. 

Failure to remove a photo can even end friendships

Similar studies in the US and in Europe have yielded similar results, says Dr Steeves. “Photos are a central part of how [teenagers] construct their online identities. Girls in particular report a high level of concern about how they are portrayed in online photos, and take a number of steps to remove a ‘bad’ photo, from asking the poster to remove it to breaking into the poster’s phone to remove it themselves.” A failure to remove a photo can even end friendships, she says. 

“There are early indications that the constant publicity children experience when parents over-share photos of them may potentially interfere with their own developmental needs later when, as teenagers, they seek to establish an identity apart from their role in the family.” The bottom line? Parents shouldn’t stop posting pictures of their children because they are afraid of being sued, says Dr Steeves, but because of the consequences to the child. 

We all have embarrassing photos of our younger selves tucked away in a wardrobe somewhere at home. I’ve shown mine to plenty of people I love and frankly, the more embarrassing, the bigger the laugh and the warm fuzzy glow of nostalgia. But the fun always depends on the context and the audience. Someday I hope my son will have the choice over both those things too.