Protecting children’s informational privacy has never been more difficult. In this article, I seek to explore the extent to which the legal protection of a child’s informational privacy depends upon parental control and consent and how this factor is incorporated into the law which seeks to protect children’s informational privacy. In addressing these questions, I consider the jurisprudence of the English courts under the tort of misuse of private information and the jurisprudence of the European Court of Human Rights (ECHR) under Article 8 of the European Convention on Human Rights (ECHR).1 The courts have placed great weight on the wishes and behavior of a child’s parent. When that has aligned with protecting a child’s privacy, the law usually protects privacy.
What happens when a child’s parents do consent to the use or dissemination of their child’s private information? A celebrity, for example, might wish to include their child in a ‘reality’ television show. A parent might be completely unconcerned with how their child’s private information is being taken, used or disseminated. How would the human right to privacy apply in such situations?
It is important to consider the context in which these scenarios arise: the rapid advancement of information communications technology and the societal and cultural shifts that see individuals needing and wanting to share information about themselves with the world. This context encompasses the trend of ‘sharing’, where parents share information online about their children. Without commenting upon the moral propriety of such behavior, and considering only the effects such trends have upon a child’s informational privacy, in this article I seek to assess the effectiveness of the law in protecting a child’s informational privacy.
Although the courts have made laudable progress in recognizing the importance of the human right to privacy, the harms of intrusion and the specific interests of children in informational privacy, doctrinal development in the context of children’s privacy is tending towards a prioritization of parental control and consent, elevating that aspect of a privacy intrusion above the harm it does or could do to the child. This risks laying a legal terrain that is unwelcoming to and unaccommodating for the protection and vindication of children’s informational privacy rights when they do conflict with the wishes of, or are not actively protected by, that child’s parents.
It is submitted that the courts should, in children’s privacy cases, take into account but not treat as critical or paramount the fact of parental involvement or consent as to the privacy-intrusive act. The courts should focus their adjudicative inquiry upon the value to the child of the human right of privacy and the harms of the particular intrusive act to the child. That would ensure the courts seriously treat privacy as a universally applicable human right, in line with their existing recognition of its importance. It would also be consistent with existing jurisprudence on children’s interests before the courts. Importantly, it would ensure privacy law treats and protects children in a way that accounts for the vulnerabilities of a child as right holder, particularly in the current information-sharing climate. There is a danger that children’s legal interests, as well as human rights law, will be seriously undermined if the courts continue in the current direction. A child’s human right to privacy should not be rendered conditional upon another’s wishes and behavior or control and consent.
There has been overall progress in the judicial recognition of the importance of the human right to privacy and the courts’ willingness and ability to protect an individual’s privacy. In many cases concerning a child’s informational privacy in the English and ECHR court jurisdictions, the child’s privacy right or privacy interests have been vindicated or protected. However, there are strong reasons, stemming from the judicial reasoning and the doctrinal development in this area, to believe that a child’s privacy depends upon the wishes and behavior, or control and consent, of that child’s parents.
We have inquired into the law’s ability to protect a child’s informational privacy when parental control and consent do not align with the privacy protection of their child. The current elevation of the factor of parental control and consent above the factor of the harm of intrusion to the child risks debilitating the legal protection of a child’s informational privacy in such cases where the parents want publicity or are indifferent to their child’s privacy.
In view of the potential corrosive effects of the current information-sharing climate on children’s psychological integrity, autonomy and development and in view of the fact that parents appear to be becoming one of the main contributors to the erosion of children’s online privacy, whether through ‘sharing’ or a lack of sufficient supervision, the courts, as well as legal scholars, should adjust their focus to the harms that informational privacy intrusions pose for children. That should be the paramount concern in cases where the child is the claimant, and it should be a greater concern than parental control and consent in cases where a child’s privacy is relevant.
Such an approach would be more consistent with both established privacy case law and established law on children’s interests and protection. It would also ensure the courts are treating the human right to privacy seriously and are recognizing the vulnerability of children as informational privacy right holders. Human rights law must not be detached from the contextual concerns about children’s informational privacy. It must prioritize the child in accounting for and answering the real threats of the modern information society to children’s privacy.
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