Few things drive me to web rage more than seeing a friend change his profile picture to his current favorite offspring. I want to grab the offender by his shoulders and bellow “Do you not remember The Truman Show? Did you not seethe at the intrusion into the life of one so vulnerable? Why did Jim Carrey never receive an Oscar for the pathos pinnacle he reached?” My anger usually subsides as my no-longer-a-friend nods contritely and wipes away flecks of my saliva. My levels of ire when a person posts a picture of a child who is not their own, cannot be put into words.
Being a stick in the mud is not my raison d’être, but wrapped up with my admitted pet peeve is a privacy intrusion into our children’s lives that has not only become accepted but so entrenched that those who do not indulge are the exception. I have even encountered people who have websites dedicated to their children containing photographs, videos and audio recordings of them in all states of undress. At what point, if any, does a child, a parent of a child or a person upon reaching the age of a majority have the right to demand that images be removed form websites or social media? At the moment, the answer seemingly is never.
The law as it pertains to use of images vests all of the rights with the copyright holder, i.e. the person that takes a photograph. According to the Digital Millennium Copyright Act (DMCA), the only person entitled to demand the removal of a photograph is the copyright holder. In short, this means that if somebody takes a picture of my child, I have absolutely no grounds or standing to enforce its removal. Further, if a person wants a childhood photograph of himself or herself removed, the social media platforms have shown themselves unwilling to help. This begs the question: Why the Mighty Eight (Twitter, LinkedIn, AOL, Google, Apple, Yahoo, Facebook and Microsoft), newly self-anointed vanguard of privacy, are unwilling to protect the image rights of children?
A photo can be used as the basis for ridicule by cyber or schoolyard bullies, and the victim is helpless to remove the source of problem.
Maybe the answer is rooted in the fact that the social media explosion is predicated upon invasions of privacy as the public are increasingly videoing, photographing and viewing the world through their mobile devices. However, it might also be anchored in the inability of America’s lawmakers to get to grips with the concept of a right to be private. Nowhere in the Constitution and the Bill of Rights, nor any of the Amendments, will you see an express provision protecting the right of privacy. Case law similarly lacks the ability to define privacy properly, mainly because there are so many different types of privacy that the classic “right to be left alone” trope does not fit.
The Children’s Online Privacy Protection Act of 1998 (COPPA) made some strides in preventing the online collection of personal information by American persons or companies from those under 13 years of age. This act gives parents control of their children’s online privacy, requiring “verifiable parental consent for the collection, use or disclosure of personal information” obtained from children. The law, obviously not anticipating the likes of Toddlers & Tiaras, assumes that parents have the best interests of their children at heart when it comes to online privacy, and never anticipated the raft of personal information that can be contained in or around a photograph uploaded to social media. Nowadays by virtue of tagging and checking in, posts by a parent can provide the coordinates for where the child lives, where the child regularly plays, the identities of relatives and family friends, visual clues of memories, and dependent—upon the parent’s privacy settings—a playbook for groomers. Further, a photo that parents may find to be cute or endearing can wind up being used as the basis for ridicule by cyber or schoolyard bullies, and the victim is helpless to remove the source of problem. In years to come, this could even lead to a child suing the parents for years of intrusive violations.
The problem is that passing new legislation is too slow and the establishment of precedent via case law takes even longer. Facebook and the like, who have made billions from data mining, should now lead the charge in protecting child image rights by amending their privacy policies. The international legal basis is there, from the United Nations Convention for the Rights of the Child, Article 16, the Privacy Act 1988 in Australia through to Article 8 of the European Convention on Human Rights.
For years these powers have existed to ensure that an image that conveys the identity of a child, for example, in a school uniform, outside a house, or showing a child’s name should not be published on the Internet without the consent of both the child and their parent or guardian. All it now takes is the willingness to implement them. Our children must be assured that with their parents there exists a safe space where their most embarrassing moments stay within the confines of the home. Or as some might like to call it, private.
Robert Garson is Managing Partner of Garson, Ségal, Steinmetz, Fladgate LLP, an intellectual property and international litigation firm in New York. He is also a barrister qualified in England and concentrates on IP and First Amendment matters.