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  • Sharenting: A Digital Footprint Beyond Innocence — #100

Sharenting: A Digital Footprint Beyond Innocence — #100

The legal consequences of parents' online behaviours

Good morning,

Today's deep dive is about sharenting — a portmanteau (a fancy new word I just learned) of "sharing" and "parenting." And it refers to parents sharing details about their children's lives on social media.

Sharenting is part of a macro trend where we can see how the legal space is slowly catching up with our digital lives. You cannot just do whatever you want online any more. It will have consequences. It might sound like less fun, but I'm a big fan.

One of the areas where things are moving quickly in several parts of the world is parents involving children in their digital presence. You might have heard of the social media act, suggesting that social media should be illegal under 13 and not allow algorithmic content selection for anyone under 18.

But today is about Sharenting. Let's dive deeper into this concept.

Let's go ...

So, what happened in Illinois?

Illinois has become the first state in the United States to pass a law designed to protect children who are influencers or who appear in social media content by their parents.

This monetisation of social media content featuring children is sometimes called 'kidfluencing'.

The Illinois bill would entitle child influencers under 16 to a percentage of earnings based on how often they appear on video blogs or online content that generates at least 10 cents per view. To qualify, the content must be created in Illinois, and kids should be featured in at least 30% of the content in 30 days.

Vloggers would be responsible for maintaining records of kids’ appearances, and they must set aside gross earnings in a trust account for the child to access when they turn 18. Otherwise, the child can sue.

The Illinois bill passed the state Senate unanimously in March and has now been signed into law.

Other states have failed to pass laws to regulate potential child exploitation on social media without success. In 2018, a California child labour bill included a social media advertising provision that was removed before it was passed, and a 2023 bill in Washington has been deliberately delayed.

France passed a law in 2020 that entitles child influencers under 16 to a portion of their revenue and gives them “the right to be forgotten,” which requires video platforms to withdraw images of the child at the minor’s request — without parental consent.

Several other countries, like Australia and India, also look at so-called "sharenting laws".

What's driving the anti-Sharenting movement?

Children being exploited online by their parents is becoming a worldwide concern. While there is high awareness of things like child pornography, adults' online behaviours can harm children in several ways.

As we persist in sharing our lives on digital media platforms, some parents—whether knowingly or unknowingly— exploit their children in many different ways:

Over-sharing personal details: Sharing intimate details of their child's life, including embarrassing moments, health issues, or challenges. This is a privacy invasion, but it can also lead to bullying or shaming as the child ages. Also, sharing videos, photos, or details of children without appropriate privacy settings can expose them to predators or malicious actors.

We also see parents who overstate, falsify, or capitalise on their child's health or emotional challenges to gain sympathy, support, or donations from online communities.

Monetising children's lives: Creating social media profiles, blogs, or YouTube channels dedicated to documenting every aspect of their child's life, often to gain followers, endorsements, or advertising revenue.

Some children might be pressured to participate in viral challenges, trends, or activities they're uncomfortable with because the content might get more online traction. And children with particular talents or skills might be pushed to showcase these incessantly online, not necessarily for the child's benefit but for online fame or monetary gain.

This constant exposure can be stressful and pressure the child, especially if they're made to perform or behave in a certain way for views or likes. Engaging children in sponsored content, endorsements, or partnerships without the children's understanding or against their will can also be exploitative.

Privacy invasions: Some parents might install surveillance apps or devices on their children's gadgets to monitor their online activities continuously. While the intention might be protection, excessive surveillance also invades the child's right to privacy.

(Sidenote: The current trend with GPS watches for children are likely falling into the privacy invasion category, and I would encourage all parents to consider both the ethical and legal aspect of that decision. But that might be a topic for another day.)

Older children and teenagers might express their discomfort or desire to have certain content removed. Ignoring these wishes and continuing to post can be a form of exploitation.

The exploitation isn't necessarily intentional.

In many cases, parents might believe they are acting in the child's best interest or not realise the potential harm they're causing. However, as the online world evolves and its consequences become more evident, many countries are now reviewing the current laws to protect children from these harms, regardless of parental intent.

What do the children say?

The first generations of children who grew up with parents sharing their everyday lives online — and profiting from those actions — are now old enough to have an opinion and speak up.

The question is getting additional attention as some children who have been exploited have famous parents.

In 2019, at only 14, Gwyneth Paltrow's daughter, Apple Martin, sparked a worldwide debate when she posted a comment on Gwyneth's Instagram post of her where she suggested the photo was posted without consent.

But what is legal?

Since there are several different types of exploration of children online, there are also several legal aspects to consider.

Children's rights, brushing up the basics ...

Children have rights. These are specified and agreed upon in the Convention on the Rights of the Child (CRC), an international treaty adopted by the United Nations General Assembly in 1989. This is the most widely ratified human rights treaty in the world.

In the CRC, you find several writings that relate to the topics above, for example:

The child's best interest should always come first (Article 3), and children have the right to privacy (Article 16). Also, children have the right not to be exploited in any way (Article 36), with specific types of exploitation like Child Labour being defined in detail (Article 32).

Violating these rights is a crime.

Why is there a need for specific sharenting laws?

To me, it feels pretty straightforward that posting content of children online — especially without consent — is not legal and that the CRC makes that clear. So, why do we need additional laws on this?

I asked my friend Hanna Kjellman, a privacy law professional, some questions, and she added valuable perspectives.

Using the CRC in these cases is cumbersome because it should be tried in the European Court of Human Rights. So, if you can find other legal ground, that can be more straightforward.

Lawyers have many different categories for the different types of laws that exist. But to simplify, this means it can be better to point at an illegal breach of privacy under the criminal law or unpaid child labour under the labour law rather than using the CRC.

These two perspectives, privacy and child labour, seem to be the primary ones. And they cover different aspects of the exploitation.

Illinois and France seem to have taken the labour law approach in their legislation, ensuring that parents do not use children without compensating them for their work. However, France appears to have more privacy aspects baked into their sharenting law.

Creating specific national or state-wide sharenting laws clarifies the expectations of parents and guides the general view on what behaviours we accept from parents in digital spaces. It will also provide us with better tools, as a society, to protect children from harm online.

Further, sharenting laws clarify for children when their parents are over-stepping their right to privacy. Hopefully, it will be easier to choose not to participate in their parents' online lives when they are old enough to voice their opinions.

Some final thoughts ...

I feel a bit uneasy about the labour law perspective. I don't think sharing details of a child's life online is ethical just because it gets part of the profit. And I believe the content on social media platforms differs a bit from children's modelling or acting, where children are not "themselves".

Vlogging is probably most comparable to reality TV. Another media form I feel is a questionable activity for children. But in TV production, the responsible publisher is not the parent, which hopefully protects the child slightly.

What development do I expect ahead?

  1. More children who grew up with sharenting parents will sue them when they turn 18. These cases will be tried based on the privacy laws that existed at the time and, if necessary, the CRC.

  2. Companies that work with influencers and content creators will need stricter guidelines on children's participation to ensure they are not breaking any laws.

  3. With increasing awareness around sharenting and children's exploitation online, deliberately deciding not to share your children online will be the high-status move. (Look at Gigi Hadid). And we will see increased shaming of parents who share content with their children online.

That was all for today. I hope you learned something new. ✨ (If you have a topic you wish I would cover in a deep dive, email me.)