With the ever-increasing presence of social media in people’s lives, a privacy law expert says New Zealand has a long way to go in getting child privacy protections up to par
The harms of parental oversharing through social media are overlooked by current laws, according to a senior lecturer from the University of Auckland law school.
Privacy law expert Nikki Chamberlain says the rise of 'sharenting' - parents publicising sensitive content of their children - has left a blind spot in New Zealand law.
“There is no issue-specific legislation in New Zealand to protect child privacy on social media if the parent or caregiver uses them in an exploitative manner and it's problematic,” she said.
Chamberlain is co-editor of the forthcoming third edition of Privacy Law in New Zealand. With the blooming of technology allowing people to broadcast the quotidian details of their own lives - and of others - across the globe, privacy law is a growing field.
One of the new chapters Chamberlain was behind covers privacy and children, canvassing the existing statutory and common law privacy protections in New Zealand as compared with those in other countries.
“In doing the research for that chapter I realised that in New Zealand we are woefully behind other countries in the protection of child privacy rights on social media,” she said. “It’s an area where we need to do a lot of work.”
Chamberlain has a number of suggestions to curb the issue, such as instating a watchdog with investigation and enforcement powers to receive complaints and sanction parents or caregivers not acting in the best interest of a child on social media. She suggested the extant roles of children’s commissioner and privacy commissioner could potentially take on this responsibility.
“That’s one way,” she said. “Education is another - a public health model. The Government should be putting some money into educating parents and children about the risks.”
But what are the risks?
These could be anything from online trolling and cyberbullying to in-person harassment at school, with the ensuing psychological impacts of depression, anxiety and social alienation. But photographs and information of kids online could potentially be used for even more nefarious purposes, such as fraud, identity theft or deepfakes and image manipulation used to create child pornography on the deep web.
Chamberlain stressed that not all sharing of images has such disastrous consequences. Children being shared on social media has allowed many family members separated by the pandemic to keep relationships alive.
“Obviously people share pictures because it creates connection,” she said. “But we do need to question ourselves if it is in the best interest of the child. Lots of times when parents post on social media, the positive response they are eliciting is for themselves.”
And while run-of-the-mill social media use by parents may present some issues when it comes to child privacy, there is another form of sharenting the law overlooks even more.
Commercial sharenting is the practice of using a child as a marketing tool. A common example could be a parent setting up a social media page on behalf of their child and posting pictures of them with sponsored food, clothing or toys.
Unlike the film industry, there are no laws specifically targeted at protecting the commercial use of a child’s image in social media, like the Jackie Coogan law in the United States, named for Hollywood’s first child star, who appeared alongside Charlie Chaplin in The Kid.
The law mandates employers set 15 percent of a child actor’s earnings in an account where it can’t be touched by parents or guardians.
Meanwhile in France, a new law protects the hours worked and income earned by child influencers under the age of 16 years old and codifies the right to be forgotten in France so that a child can request the deletion of content about them online.
It could be seen as an evolution of the blank slate idea in criminal law, where a person’s misdeeds may be scrubbed off the record after seven years.
The right to be forgotten is also part of the EU’s General Data Protection Regulation.
"We do not have an equivalent law in New Zealand,” Chamberlain said.
And it seems the country just recently passed up an excellent opportunity to remedy this issue.
Chamberlain argues that the Privacy Act of 2020 was a squandered chance to enshrine these protections into law.
“A co-author made the comment that the Privacy Act 2020 is really privacy law as appropriate to 2011,” she said. “We are approximately a decade behind technological developments, and that’s because it takes so long to get laws passed and through the legislature.”
And while the legislative response to social media use might be dragging its feet, Kiwis are living more and more of their lives online.
Data from Statista shows the percentage of the population who are active social media users has jumped from 57 percent in 2015 to 82 percent in 2021, while New Zealand has more mobile phones connected to the internet than it has people.
Kiwis between the ages of 16 and 64 spend just under two hours a day on social media, with the most popular forms being YouTube, Facebook and Facebook Messenger.
Netsafe online safety coordination manager Sean Lyons said the issue of parental oversharing didn’t come across his desk too frequently, but it did happen.
He said problems often stemmed from shared custody arrangements where parents may have different ideas over what was appropriate to share.
“People might have a philosophical difference on what’s okay,” he said. “And unless it breaks legislation or the terms and conditions of the particular platform, it might be difficult to do anything about it.”
He said Netsafe’s advice for parents was similar to the advice given about any image-sharing: it’s always best to ask.
“Sometimes it can feel clunky, but it’s best practice to ask if anyone minds if you post it,” he said. “Even as your children get older, it might not necessarily be about asking them for their permission - but talking to them and finding out how they feel about it.”
He said it was important parents modelled the same mindful internet use they want their children to imitate.
“Nothing smells more inauthentic than a parent sitting down their child and saying don’t use the internet like that and then going away and posting all their own pictures without asking.”
Netsafe offers the following tips to protect children from oversharing:
