Candice Le Sueur Fisher has a background in Psychology, Business Ethics and Information Ethics and currently specialises in Privacy management. Chyrisse Smith from CSI Attorneys is a practising lawyer and family law specialist.
Silly season is approaching, and it is "happy snappy" time for social media users who get to finally spend some extra time with their children.
If you are snapping away at photos of your child at the mall, beach, music class, or birthday parties, other people's children could also be in your photos.
But, are you allowed to post those on social media?
Two mothers, an ethicist and a lawyer respectively, weigh in on the issue.
The online world is steeped in myths. Let's get past those first, then look at whether it is OK to post pictures of other people's children online.
Myths and truths of the nature of posting online
"I'm just sharing our cute moments with my friends and family on social media, so it is a safe space."
Multiple (best estimates have it at hundreds of) companies grab every bit of information from the post and document, link, and cross-reference it to build profiles of people to manipulate behaviour (called "corporate surveillance").
You agree to this in the Terms and Conditions.
"A photo has no information – it's just a cute picture."
A photo contains:
Faces, used for facial recognition.
Location, either by visual information or geo-tagging.
Personal information, race, age group, gender, location information, indications of preferences, potentially health information and more.
"If I delete a post, it is gone."
Digital does not die. By various mechanisms, it never really goes away.
"Nothing bad will happen to children if I post about them online."
In the best-case scenario companies will be better able to manipulate them from a younger age as they engage with the internet because they have been profiled.
Your child's identity could be stolen and pictures of your child photoshopped into or used on pornography sites, images are often used by trafficking cartels to identify a spectrum of children who fit the criteria of its clients.
Is it wrong to post photos of other people's' children online?
The ethicist says:
Yes. Because you simply do not have the right to expose children to the dangers of the internet for your gain.
As far as I can tell, a major motivation for posting pictures of children online is because those photos tend to get more "likes" than others. We know from social science that "likes" cause a little dopamine-rush in the brain of the social media user.
Essentially, children's privacy is traded to feed an adult's addiction. The responses to what I am saying here from users are often the same as from other addicts when their addiction is challenged – denial, anger, outrage, and rationalisation.
We would never be OK with people putting children in harm's' way just to buy cigarettes. Why do we tolerate it for the sake of 'likes', which is the big addiction of the day?
Is it illegal to post photos of other people's children online?
The lawyer says:
The popularity of social media applications has outweighed the safety of our children by a practice called "sharenting". This has resulted in a global debate regarding the legalities regulating such content about the privacy and protection of such information, especially to protect our minor children from child trafficking and other crimes.
Considerations from a legal standpoint
- All children have a common-law right to privacy.
- Minor children are seen as vulnerable individuals and should be afforded special protection, as they cannot protect themselves.
- The Constitution of South Africa, which promotes the right to privacy.
Also read: Anti-abduction tips for children of all ages
The Children's Act:
While it does not regulate the sharing or publication of photos of minor children, it clearly states that the best interest of minor children is always of paramount importance, specifically so when considering the infringement of the child's privacy[i].
South African law is clear that when publication occurs every person who is directly or indirectly responsible for the publication thereof can be held legally liable for it. The publication is making content available to another in any form - orally or in writing.
The Journalism Act states that all photos and visual imagery must accurately display and not sensationalise the circumstances of the minor child.
Protection of Personal Information Act (POPIA):
Children, like all of us, have a right to protection of our personal information and how our personal information is used.
The omission of seeking proper consent from parents of minor children could have severe consequences including fines, imprisonment, and reputational damage.
This has not been argued and adjudicated upon before our courts and therefore we do not currently have a precedent to rely on.
It stands to reason that in determining this principle our courts would use a reasonable person test to determine the extent of this violation.
What to do?
The ethicist says: Do not post photos of children online.
It serves no reasonable purpose and is not in the best interest of the child. It is an irrational mass-habit that we must break. It is time to get back to looking children in the eye, instead of looking at them on screens.
If you are willing to gamble children's well-being and future autonomy to get your fix of 'likes' then at least follow the advice from the lawyer.
The lawyer says: For minor children get consent from the parent.
The consent should be written and include the necessary information:
The parent/legal guardian must be informed what the photo will be used for, what the purpose of the publication is, what purpose it serves and for how long it will be displayed or used.
Keep in mind that children, who are of a certain age do have a right to be consulted about the use of images which may impact them.
Think about whether the child could, later in their life after having started their job, institute civil action against the adult who made a publication of pictures, which has caused harm to that specific child, reputational or otherwise.
Currently, there are no reported cases in South Africa or any precedent involving civil action instituted by children who seek damages from their parents for posting photographs or sharing information concerning them on social media or online, the same is true for the family and friends of the parents and the children.
South African privacy laws
It is however clear that South African privacy laws are underdeveloped in this regard.
If South African privacy laws are to follow in the footsteps of other European countries, there exists a real possibility that South African parents may be sued by their children or other parents as stated earlier, shortly.
How children's privacy violations on social media are dealt with remains to be seen and determined as we live in an ever-evolving digital age.
Our response will ultimately have to be tested in our courts and unpacked by psychologists, educationalists, and ethicists.
[i] The aforementioned is encapsulated Section 7 read with Section 9 of the Children’s Act and Section 28 of the Constitution of South Africa.
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