1. Legislative Recognition of a Fiduciary-type Relationship for Parents and Children
A statutory requirement similar to those imposed on other fiduciary relationships might be
an effective means of protecting children’s right to privacy online. A statute of this sort should
reflect that parents are in a unique position to have sensitive information about their children, and
that they have a fiduciary-type relationship based on the trust and reliance their children place on
them. However, laws carry consequences, and the Author is hard pressed to agree that parents
should be penalized for posting about their children. Instead, as a way to address the societal need
for greater awareness of children’s rights, without penalizing parents, resolutions rather than laws
reflecting this paradigmatic shift would be appropriate.
As far as a statutory requirement would go, the impacts would be similar to other
confidential relationships. The ethical and legal duty of attorneys prevents them from voluntarily
disclosing confidential information about a client.
157 Penalties for violating attorney-client
privilege are determined by the state bar. In Georgia, violating confidentiality is punishable by
disbarment, however, there is no criminal penalty for violating client confidentiality.
158 The same
is true for medical personnel—a violation of doctor-patient confidentiality is grounds for a tort
cause of action, and patients can recover damages for the harm that resulted from the breach.
Parents, in their capacity as parents to teach, mentor, and guide their children into becoming
autonomous adults can be considered to have a duty of confidentiality to their children. The
information parents have about their children is of the most intimate and detailed form possible.
To fully protect a child’s privacy, personal details and information that parents have in the process
of their upbringing should be kept between the parent and child, until the child can chose to
disclose it (or refrain from disclosing it) himself as an autonomous adult.
The difficulty with the civil nature of confidentiality violation remedies is that it pits child
against parent. There are times when the state will step in to represent the interests of a child,
though are largely exclusive to criminal actions.
160 Further, familial discord is detrimental to
everyone involved. A form of injunction or fine might be effective, though extensive interference
with the parental responsibility to look out for the best interests of their children might bring about
more harm than good. Thus, the Author proposes that instead of a statute carrying injunctive
power, a resolution to increase awareness is more appropriate.
C. Educating Parents to Increase Awareness and Personal Responsibility
Educating parents on the potential detriments to their children from their posting online
seems like a simple way to solve the problem. Certainly a few viral articles and a social media
campaign would be far-reaching and arguably much faster than passing legislation without leaving
156 About Bills, Resolutions, and Laws, LEXISNEXIS.COM
https://www.lexisnexis.com/help/CU/Serial_Set/About_Bills.htm (last visited April 26, 2016) (“A simple resolution
. . . is a proposal that addresses matters entirely within the prerogative of one Chamber or the other. It requires neither
the approval of the other Chamber nor the signature of the President, and it does not have the force of law.”).
157 MODEL RULES OF PROF’L CONDUCT r. 1.6 (AM. BAR ASS’N 2015).
158 RULES OF PROF’L CONDUCT, r. 1.6 (STATE BAR GA. 2001),
159 DAVID A. ELDER, PRIVACY TORTS § 5:2 (2015).
160 Erik Pitchal, Children’s Constitutional Right to Counsel in Dependency Cases, 15 TEMP. POL. & CIV. RTS. L. REV.
663, 665–66 (2006).