Family privacy in the internet age: Family photographs as a case study

In the modern internet age significant challenges are posed to the privacy of families and individuals. Online sharing of family photographs poses particular challenges, most notably for the children who are often the subject of those photos. Although parental use of social media to share photographs of their children online (known as ‘sharenting’) has attracted much media comment there has been little academic discussion of the legal ramifications of sharenting. A recent article by Steinberg (2016) provides the first analysis of the impact of sharenting on children’s privacy, considering the potential legal solutions in American law. This paper seeks to further develop the discussion started by Steinberg. In 2016 media reports suggested that an eighteen year old Austrian girl had brought a claim against her parents for violating her privacy by posting embarrassing childhood photos on Facebook. Whilst the story has since been denounced as untrue, it is not inconceivable that a child might bring such a claim against their parents. Part one of this paper considers how such a claim by a child against her parents for unauthorised online disclosure of images of her childhood might be decided before the English courts. Whilst English law recognises no enforceable general right to privacy, the child is not without a potential remedy. Three legal regimes are clearly relevant to such a scenario; the law of confidentiality, the tort of misuse of private information (MOPI) and the Data Protection Act 1998. The child might, under these provisions, potentially obtain an injunction to prevent continued publication and to obtain the removal of images posted online. They might obtain monetary compensation. As recognised, in this paper, however, such a claim raises many difficult questions, not least, how might the courts answer a parent’s argument that in the twenty first century a child cannot reasonably expect not to have their photographs displayed on social media. In part two of this paper recognition is given to the fact that some commentators have questioned whether the state should ever intervene in such a family dispute between a child and their parent(s). The discussion is thus set in the context of a wider examination of the notion of family privacy. Whilst there is some academic disagreement about what family privacy is and what it protects, it is evident from analysis of the literature that family privacy may be seen to both protect parental rights to determine how family life operates (Cahn, 1999) and to protect the family from state intervention (Fineman, 1999; Lacey, 1998). Family privacy has also been described as an ethic which 'transcends law as such and informs the way that laws are interpreted and understood' (Fineman, 1998). Analysis of the tort of misuse of private information certainly suggests that in determining MOPI claims the judiciary continue to be influenced by an ideology of family privacy and view protection of the private family sphere as important (ETK v News Group Newspapers [2011] EWCA Civ 439; Weller v Associated Newspapers Ltd [2015] EWCA Civ 1176; R v Broadcasting Complaints Commission [1995] EMLR 163). MOPI case law suggests also that the courts consider parents should be able to determine what happens to their children’s information, even if their decisions have a negative impact on those children (AAA v Associated Newspapers Ltd [2013] EWCA Civ 554). There does appear, therefore to be some strength to the argument, that the notion of family privacy is still relevant in the twenty first century, and that it might allow parents to post family photographs online without fear of state or court sanction. This paper puts forward a counter argument, however, one which would lend strength to the child’s contention that their claim should be heard. This paper will argue that many of the assumptions which underpin the notion of family privacy are no longer appropriate in the twenty first century, and that the child in a sharenting claim is deserving of the court’s protection. Ultimately, in exploring the tensions between parental rights and children’s rights that lie at the heart of the sharenting scenario, this paper highlights a need to reconsider notions of family privacy and their influence upon the legal regimes which protect private and personal information