Publications
For many reasons, including privacy and fear of exposure to online predators, some adults may be hesitant to allow photographs and video footage of minors to be posted on the internet.
But what can be done if the pictures have already been publicised without parental consent?
The question below is from a reader who wants to know the legal steps involved in getting pictures of her underaged niece taken down from a social media platform.
The reader writes:
Hello, there is a lady on TikTok posting pictures of my niece. She does not have custody. The father has full custody. They do not want my niece's pictures on social media for safety reasons. What can we legally do to get it taken down?
News24 spoke to two experts, Candice Le Sueur Fisher, who has a background in psychology, business and information ethics and currently specialises in privacy management, as well as Chyrisee Smith, a practising lawyer and family law specialist from CSI attorneys.
Taking legal recourse
Smith believes that the poster of the post does not have the authority to post any content of the child containing personal information, which is inclusive of imagery that shows her face.
"The father can take recourse against her by bringing an application to court to have the posts removed from social media or further interdict her to post any photos of the minor child in the future, without his consent, or alternatively the niece's consent if and when she is of majority age," advises Smith.
Though Smith warns that there is no case law or precedent set in place for matters of this nature, the matter can be set out to test the court for relief in this regard.
"The application/interdict process involves the legal guardian of the minor child issuing a founding affidavit depicting his concerns and stating the facts to request the court to remove these posts and or interdict the person from posting his daughter on social media without his consent," Smith explains.
'Whichever gives them better protection'
The Information Regulator has stated that photos that clearly identify a person are their personal information, and video clips will also qualify, says Le Sueur Fisher.
"Surely the legal guardian's wishes should be honoured, or the child's wishes – whichever gives them better protection – without question."
The Protection of Personal Information (POPI) Act has a grey area wherein it does make provision for "personal and household" use of personal information, but "personal and household use" has not been defined.
"I think personal use means at least two things: (1) that it is not used for work (commercial) purposes, and (2) it is not used for the purpose of making it public," says Le Sueur Fisher.
However, Le Sueur Fisher insists that "children’s rights, including their privacy rights, should be protected, one way or another".
"We need to remember that posting photos and videos of children on social media does not benefit children, and could make children unnecessarily self-conscious, since they need to look and behave 'camera worthy'. This could lead to anxiety, low self-esteem or other mental health issues in childhood or later in life," says Le Sueur Fisher.
"I hope that parents, policy makers and the courts will seriously consider this unfair distribution of risk and benefit when considering these cases."
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