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Mobile phones with high quality cameras and the ease of social media apps have forever changed the way we chronicle our children’s lives.
We can now share joy, achievement and even sorrows in the moment but the sharing of these precious memories is also fraught with legal and ethical concerns that some parents may not have considered.
The increasing number of parents sharing photos, videos and information about their children on social media, also known as ‘sharenting’ has led to warnings about the privacy paradox.
How much is too much? When should children be consulted? Should we ever share our small children’s lives online?
Criminal lawyers and police offers see the worst behaviours by people and to that extent we have to be careful and vigilant without being paranoid.
Have fun, be careful, be alert
High profile Australian senior criminal lawyer Bill Potts believes parents should have fun, be careful, and be alert.
“Criminal lawyers and police offers see the worst behaviours by people and to that extent we have to be careful and vigilant without being paranoid,” Mr Potts says.
Mr Potts says the fundamental purpose of the law is to ensure that children are protected and not sexualised or be made the subject of sexual exploitation, but if you are in a public place there is no reasonable expectation of privacy.
“Parents taking photographs of their own children in the bath or naked are not committing any offence unless those photographs are then distributed for the purpose of exploiting their children.
“The reason for this is that it is every parent’s delight to record memories of their children and record their image for embarrassment at their 21st birthday party. The criminality lies where someone takes photos of children in a sexualised way or publishes or distributes them for that purpose.
“However, for adults if you are in a public place there is no reasonable expectation of privacy. You can’t protect your own image from being photographed.
“If you are in a private place such as a back yard or private swimming pool there is every expectation that you won’t be photographed. Flying a drone over is probably trespassing. If someone is using a camera from a distance to take photographs of children there is a breach of privacy. Increasingly, there are laws to deal with those kinds of breaches of privacy.
“If someone is taking photos of your naked child on the beach and they are not part of your family group they are in serious danger of being charged with being in possession of, or producing, child exploitation material.
“You shouldn’t wrap your kids in cotton wool. We shouldn’t be paranoid about these things, but parents have to be careful to ensure that their children are not exploited by bad people.”
The photographer holds the copyright
Mr Potts says those parents who choose not to place photos of their children on social media but find images of them shared through other people’s photos of birthday parties or other joint childhood events have very limited legal rights.
“Their rights are extraordinarily limited. Whoever takes the photograph holds the copyright to those photographs.
“We don’t want to turn a five-year-old’s birthday party into a legal minefield,” he says.
“You also don’t want to put things on the internet that identifies where your child lives or the inside of your house.
“Much of the expectations of privacy we had are gone completely.”
If you do have special circumstances that make it important for other parents to avoid putting photos online of your child, it is usually best – where possible – to alert other parents ahead of time, so they avoid taking photos that include the child.
Understanding the ethics
President of the Australian Association for Professional & Applied Ethics and Senior Research Fellow at Griffith University’s Institute for Ethics, Governance and Law, Hugh Breakey, says if a parent requests a photo to be removed, it is usually best to comply, just in case there are serious issues lying unspoken in the background.
“Sometimes there may be further concerns that are not well-known or easily communicated. For example, the child might be vulnerable to harm from an estranged parent or relative, or the family might have already encountered problems with identity theft,” Dr Breakey says.
“If you do have special circumstances that make it important for other parents to avoid putting photos online of your child, it is usually best – where possible – to alert other parents ahead of time, so they avoid taking photos that include the child.”
Dr Breakey says placing information around the image (or ‘tagging’ it on Facebook) in any way that allows direct identification of the child can be much more ethically serious than posting the photo itself.
“Online information has several qualities that pose significant privacy concerns. It is often permanent; searchable; analysable (into big data); and sharable (it can be communicated and re-published in other formats).
“This means that once the information is out there, it can take on a life of its own.
“In particular, identifying information can be searchable by an estranged parent, or be used by someone attempting various forms of identity theft.
“Different parents will be faced with different risks – and make different judgements about those risks.
“For this reason, it is best practice to only tag or otherwise identify young children in an online photo if you have the parent’s consent, and to ensure your privacy settings are fairly restrictive.”
Dr Hugh Breakey's advice on what to consider when photographing children
- Taking the photo: in normal cases, capturing other children in the background, or interacting with your child, is acceptable. Directly photographing another child is a little murkier, but would be common in some contexts (e.g. a themed fancy dress party, where one child is wearing a spectacular costume). When in doubt, it is good to ask.
- Posting the photo online: While taking the photo may have been innocuous, issues can arise if it is posted online. For this reason, it is a good idea to pay careful attention to your privacy settings on social media, so as to keep photos of children as private as possible. (Note also that some apps allow you to smudge faces in the background. It’s also possible to crop the photo strategically.)
- Tagging/identifying is more serious: It is best practice to only tag or otherwise identify young children in an online photo if you have the parent’s consent, and to ensure your privacy settings are fairly restrictive.
- Official, commercial or professional use: Even if in other cases personal use of the photo would have been allowed, if it is employed in a commercial or professional context, then ethical concerns can arise. One issue here is that commercial use of a photo often involves actively promulgating the photo, rather than merely having it available (e.g. on personal social media) for others to find.