Courts aren’t the solution to parents oversharing on social media.

Courts Aren’t the Solution to Parents Posting Embarrassing Pictures on Social Media

Courts Aren’t the Solution to Parents Posting Embarrassing Pictures on Social Media

The citizen’s guide to the future.
Sept. 26 2016 11:38 AM
FROM SLATE, NEW AMERICA, AND ASU

How Do We Prevent Parents From Posting Embarrassing Pictures?

Courts aren’t the answer.

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Are the rights of this child being violated?

Milenko Bokan/iStock

In mid-September, Austrian media reported that an 18-year-old woman was suing her parents for making her life miserable by posting her childhood pictures on Facebook. While doubts emerged about the truth of the story, the German-language magazine that first published the news, Die ganze Woche, published an update on Sept. 20. The magazine, which has not released the woman’s real name, said her father deleted the pictures after the story of her lawsuit garnered worldwide attention. Such action could be the first step toward resolving the dispute, the magazine said. It also reported that the woman had not left her apartment for days and that her father was (perhaps unsurprisingly) upset at the publicity, though he gave no public comment.

This woman may be the first to take such drastic action, but it’s only a matter of time before today’s children begin vocalizing their views on having to inherit a digital footprint. It’s easy to scoff at parents who post their kids’ pictures online and to tell them to stop. As with most things in life, it’s not that simple.

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After all, being excited about your kids (and taking lots of pictures of them) is nothing new. In his book on the history of snapshot photography, visual culture scholar Richard Chalfen writes that in the mid-20th century, the birth of a child was among the most common reasons for a family to buy a camera. Family photo collections overflow with images of kids, and such pictures often rank among people’s most valued possessions. Parents haven’t changed. The world has.

Analog pictures sit in an album or shoebox, waiting to be pulled out and periodically perused. And if those boxes of photos live at the top of a closet or in the corner of your parents’ basement, very few people will do that perusing. Now, of course, digital technology frees us from the constraints of film, making it possible to take and store orders of magnitude more pictures than we did decades ago. Our digital pictures are scattered across phones, computers, social media, photo sharing sites, or blogs. Many more people can see them, distribute them beyond the initial audience, or find them years later. What does that mean for today’s children? That’s the challenge that parents must grapple with.

Sharing information online, including information about kids, yields numerous benefits. It helps people keep in touch with family and friends, find support and comfort when life gets overwhelming, and obtain advice or information when they have questions. Connecting, bonding, and learning are all important for parents.

But sharing information online presents risks as well. Photos or videos can humiliate children. Personal information about children and parents can spread beyond its intended audience or be inferred from other data a person shares. And the companies whose business depends on amassing and mining the data that people share—the Googles and Facebooks of the world—have a keen profit interest in assembling rich profiles about their users (and future users).

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Adults, and teenagers to a certain degree, are largely capable of grasping these complexities and making decisions (or seeking out more information to inform their decisions). They have agency. Children, however, are learning what it means to exist in the world and how to make decisions, a process significantly influenced by their parents. When parents share information online about a child, they aren’t simply making a decision for themselves. They’re also creating the child’s digital footprint, an identity the child will one day inherit and have to manage.

This is what makes the Austrian lawsuit so fascinating. The woman is reportedly not suing her parents because someone stole her identity or bullied her because of the pictures. The media quoted her as saying she filed the lawsuit because her parents took away her autonomy, her ability to decide for herself what her digital footprint is.

Parents are beginning to recognize this. In a New York Times essay published in July, writer Elizabeth Bastos said, “I’ve written extensively, intimately, damningly, about my children for seven years without once thinking about it from the point of view of their feelings and their privacy. A few months ago I stopped.” (Emphasis in original.) She wrote that her decision came after she published a blog post about her son entering puberty. Her father called her and asked whether she recognized the implications of writing so publicly about her son, his grandson, in such detail.

Stacey Steinberg, a legal skills professor and associate director of the Center on Children and Families at the University of Florida, has analyzed the legal issues surrounding the various ways parents share information about their kids online, including posting pictures. Compared with Europeans, “we [Americans] strongly support parental autonomy, and we protect our free speech rights,” Steinberg said in an interview. “So I’m not so sure a case like this [the reported Austrian lawsuit] would be very successful in the United States even if someone were to bring one.”

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For one, we have the parent-child immunity doctrine—the legal notion that a child cannot bring legal action against his or her parents for torts, or civil wrongs, parents inflict while the child is a minor. This “purely American concept” is meant to give parents discretion to make decisions on behalf of their children, Steinberg said. It remains law in many states, though some have abolished it. Beyond that, a court decision requiring parents to remove information they post online could violate their First Amendment right to free speech.

“I personally don’t think that legal action would be the best way to try to remedy these things,” Steinberg said. While the legal system may be an appropriate venue to address extreme instances, such as parents posting images that may be pornographic or sharing videos where they belittle a child to the point of emotional abuse, Steinberg suggests a focus on providing guidance that helps parents think through the implications of sharing information about their kids online.

In a forthcoming article in the Emory Law Journal, she considers how a public health–based approach to behavior change could address these concerns. For example, health professionals have mounted campaigns to educate parents and the general public about ways to combat secondhand smoke exposure and sudden infant death syndrome. In the article, Steinberg provides a list of recommendations for parents, including the suggestion that parents ask their children before posting pictures online and give children “veto power” over information, photos, or videos they don’t want to be shared. Steinberg, who along with pediatrician Bahareh Keith will present on this topic at next month’s national conference of the American Academy of Pediatrics, believes doctors could be a good source for parents to turn to get advice about online sharing decisions.

I’ve argued here before that it is unrealistic to expect parents to completely stop sharing pictures of their kids online. And while the law could help address some concerns about the practice, it remains too blunt an instrument to be useful for parents who may confront these decisions several times per day. Encouraging parents to be thoughtful, rather than coercing or shaming them into abstaining from something they’re already doing, seems to be a more fruitful approach for families and for society.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, follow us on Twitter and sign up for our weekly newsletter.

Priya Kumar is a doctoral student at the University of Maryland, where she studies families, technology use, and privacy. Follow her on Twitter.