Technology
With the increasing presence of social media in people’s lives, says a privacy expert New Zealand has a long way to go to get the protection of children’s privacy up to standard.
The damage of parental judgment through social media is overlooked by current laws, according to a senior lecturer at the University of Auckland’s law school.
Privacy law expert Nikki Chamberlain says the rise of ‘sharing’ – parents publishing sensitive content from their children – has left a blind spot in New Zealand legislation.
“There is no issue-specific legislation in New Zealand to protect child privacy on social media if the parent or caregiver uses it in an exploitative manner and it is problematic,” she said.
Chamberlain is co-editor of the upcoming third issue of Privacy legislation in New Zealand. With the rise of technology enabling people to broadcast the daily details of their own lives – and those of others – around the world, privacy legislation is a growing field.
One of the new chapters behind Chamberlain covers privacy and children, and examines the existing statutory and common law privacy protections in New Zealand compared to those in other countries.
“By doing the research for that chapter, I realized that we in New Zealand are pitifully behind other countries in protecting child privacy rights on social media,” she said. “This is an area where we have a lot of work to do.”
Chamberlain has a number of proposals to tackle the issue, such as appointing a watchdog with investigative and enforcement powers to receive complaints and parents or carers who are not acting in the best interests of a child, on social media to sanctions. She suggested that the existing roles of child commissioner and privacy commissioner could possibly take on this responsibility.
“It’s one way,” she said. “Education is another – a public health model. The government should invest money to educate parents and children about the risks. “
But what are the risks?
It can be anything from online trolling and cyberbullying to personal harassment at school, with the ensuing psychological impact of depression, anxiety and social alienation. But photos and information of children online could potentially be used for even more heinous purposes, such as fraud, identity theft or theft and image manipulation used to create child pornography on the deep web.
Chamberlain stressed that not every part of images has such disastrous consequences. Children shared on social media have allowed many family members separated by the pandemic to keep relationships alive.
“Of course people share photos because it creates connection,” she said. “But we have to ask ourselves whether it is in the best interests of the child. Many times when parents post on social media, the positive reaction they evoke is for themselves. ”
And while the use of social media by parents may raise certain issues when it comes to children’s privacy, there is another form of sharing that the law overlooks even more.
Commercial part is the practice of using a child as a marketing tool. A common example could be a parent setting up a social media page on behalf of their child and posting photos of them with sponsored food, clothing or toys.
Unlike the film industry, there are no laws specifically aimed at protecting the commercial use of a child’s image on social media, such as the Jackie Coogan Act in the United States, named after Hollywood’s first child star, who appeared with Charlie Chaplin in The child.
The law requires employers to put 15 percent of a child actor’s earnings into an account where it cannot be touched by parents or guardians.
Meanwhile, a new law in France protects the hours worked and income earned by child influencers under the age of 16 and codifies the right to be forgotten in France so that a child can delete the content about them online.
This can be seen as an evolution of the blank page idea in criminal law, where a person’s misdeeds can be scrubbed off the record after seven years.
The right to be forgotten is also part of the EU’s General Data Protection Regulation.
“We do not have an equal law in New Zealand,” Chamberlain said.
And it seems that the country has recently missed an excellent opportunity to rectify this problem.
Chamberlain argues that the Privacy Act of 2020 was a wasted opportunity to enshrine this protection in the law.
“A co-author commented that the Privacy Act 2020 is indeed privacy legislation as applicable to 2011,” she said. “We’re about a decade behind technological developments, and that’s because it takes so long to get laws passed and passed by the legislature.”
And while the legislative response to social media use may drag their feet, Kiwis are living more and more of their lives online.
Data from Statista show the percentage of the population who are active social media users has jumped from 57 per cent in 2015 to 82 per cent in 2021, while New Zealand has more mobile phones connected to the internet than it has people.
Kiwis between the ages of 16 and 64 spend just under two hours a day on social media, with the most popular forms being YouTube, Facebook and Facebook Messenger.
Sean Lyons, manager of Netsafe’s online safety coordination, said the issue of parental judgment does not appear too often on his desk, but it did happen.
He said problems often stem from shared supervision arrangements where parents may have different ideas about what is appropriate to share.
“People may have a philosophical difference about what is good,” he said. “And unless it violates legislation or the terms and conditions of the specific platform, it can be difficult to do anything about it.”
He said Netsafe’s advice for parents is in line with the advice given on any image section: it’s always best to ask.
“Sometimes it can feel awkward, but it’s best practice to ask if someone cares if you post it,” he said. “Even as your children get older, it may not necessarily be about asking them for their permission – but talking to them and finding out how they feel about it.”
He said it was important for parents to model the same thoughtful internet use they want their children to emulate.
“Nothing smells more dishonest than a parent sitting with their child and saying do not use the internet like that and then go away and post all their own photos without asking.”
Netsafe offers the following tips to protect children from judgment: