important step in the area of children’s privacy online: privacy for its own sake. This Article aims
to address how parents might be jeopardizing the privacy rights of their children by posting about
them without their consent, or how they might be infringing on their child’s ability to create and
shape their own image, and presents a theoretical paradigm through which we might better achieve
children’s privacy interests online.
Around the twentieth century, there was a gradual shift from a property view between
parents and children towards a concept of parents as trustees of their children’s best interests.5 This
shift was beneficial, though only partial: theoretically analogous treatment of children and property
still underpin much of the current discussion around children’s rights.6 The next step in this shift
is a new theoretical approach: set the analysis of balancing children’s right to privacy against their
parents’ right to parentage and free speech against the backdrop of parents as trustees of their
children’s rights. This requires examining the continuing impacts of the property paradigm and
replacing it with the modern view of children as individuals with rights that deserve protection—
even from their parents.
In this Article, I revisit the question that Warren and Brandeis first presented in 1890 in
their well-known Right to Privacy article: “whether the existing law affords a principle which can
properly be invoked to protect the privacy of the individual; and, if it does, what the nature and
extent of such protection is,”7 and specifically answer it in terms of what protections are afforded
to children’s right to privacy. Part I will discuss the impact of the advent of social media on privacy
in general and its specific impact on children. Part II will follow the analytical framework
presented by Warren and Brandeis, first examining the principles contained in existing law which
can be invoked to defend children’s rights to privacy in social media, then discussing how to apply
and adapt the fundamental underlying principles to better protect children’s rights to privacy.
II. SOCIAL MEDIA HAS CHANGED PRIVACY FOR CHILDREN
Prior to the age of social media, family and children’s lives were generally private. The
only children who received publicity, or whose image or stories were made public, were child
actors and models, children of celebrities, and the occasional exceptional child mentioned in a
newspaper or magazine. Back then, vacation photos were scrapbooked. Personal stories about
child-rearing were told in personal diaries or on the phone to Grandma. Then social networking
sites were invented and the sociology of sharing changed.
Workshop, NAT’L CTR. FOR MISSING AND EXPLOITED CHILDREN,
visited March 24, 2016); Protecting Children’s Privacy Online, in PRIVAC Y AND THE INTERNET: YOUR EXPEC TATIONS
AND RIGHTS UNDER THE LAW 57–58 (Margaret C. Jasper ed., 2d ed. 2009) (the author cautions parents to carefully
supervise their children’s activity online because they “till lack maturity and judgment, which may lead them to
divulge personal information that should not be revealed”).
5 Barbara Bennett Woodhouse, “Who Owns the Child?”: Meyer and Pierce and the Child As Property, 33 WM. &
MARY L. REV. 995, 1038–39 (1992) (stating that historians suggest that by the twentieth century, “[T]he concept of
parental obligations as an outgrowth of divinely conferred paternal ownership and control of children had given way
to that of parental trusteeship in the child’s ‘best interests.’”).