The internet may make or break you and the innocence of sharing cherished family moments on social media could cost a permanent loss of privacy for the minors who lack capacity to consent to the sharing.
Persons who innocently post personal content, including narratives, photos and videos of minors on digital social media platforms like LinkedIn, Facebook, Instagram, and X (formerly known as Twitter), unknowingly expose minors to perpetual exploitation and harm. Some of these harms may be instant when bad actors bully the minor or use the content to defraud their connections. Other harms may develop over time when bad actors squat on social media accounts and collate the profile of targets for years/decades for future identity theft. Unfortunately, these harms yield revenue for bad actors in the dark web, an incentive that has created an immoral industry of sorts. This article explores the legal avenues available to protect children and youth from exploitation stemming from seemingly harmless social media posts, offering practical examples and insights.
Sharing content featuring children on social media carries significant legal implications, requiring a nuanced understanding of privacy laws, child protection regulations, and online safety measures. While regulatory bodies and legislation ought to protect users of digital platforms from independent bad actors who reap the content for immediate or future harm, individual who share content has a duty to be aware of the remedies available when their content is misused. For public education, the Office of the Privacy Commissioner of Canda and the Office of the Information and Privacy Commissioner of Alberta break down the privacy laws into non-legal language with visual aids. As well, lawyers and privacy professionals play a crucial role in educating families about privacy laws and online safety measures to mitigate risks associated with social media sharing. They often advise parents and young people on setting strict privacy controls, obtaining consent before posting, and understanding the potential consequences of sharing sensitive content. One recommendation is adjusting privacy settings to limit the visibility of a child's photos to trusted friends and family members only, thereby reducing the risk of unauthorized access or misuse. Nonetheless, if the account of a trusted relative or friend is hacked those posts may be accessible to bad actors. Therefore, the poster has a duty to mitigate risks because legal remedies may not make up for the harms.
Understanding Legal Implications
Although privacy laws are directed at businesses and organizations, when an individual uses the digital platforms to share their lives with their connections, or the public, the individual consents to the privacy policies of the business or organization that controls the platform. For example, Facebook and Instagram are controlled by Meta. In Canada, the Personal Information Protection and Electronics (PIPEDA) sets out the fair information principles of privacy protection for private-sector organizations. One of these principles is explicit consent for the collection, use and disclosure of personal information. Inadvertently, each time we use a social media platform, we agree to that platform’s privacy protection terms.
The Office of the Privacy Commissioner of Canada considers children under the age of 13 unable to give meaningful consent to the collection and disclosure of their information. In Alberta, anybody under the age of 18 is considered a child. Therefore, when a parent or guardian shares content around a child, the parent/guardian has assumed consent to the privacy policies of the platform. While the intention may be to share joyous experiences, these posts can be misused by malicious individuals, leading to privacy breaches, online harassment, and exploitation. An example is the US case of the “Nirvana Baby.”
Cease and Desist Orders
In cases where social media posts featuring children are exploited by strangers or malicious entities, lawyers can pursue legal action to protect their clients' rights. For instance, if a photo of a child posing innocently at a tourist attraction is misused for nefarious purposes, such as inappropriate commentary or unauthorized distribution, a lawyer can issue cease and desist orders, including injunctions, to stop the exploitation and demand the removal of the content. These legal measures aim to halt further dissemination of the harmful content and hold the responsible parties accountable for their actions.
Civil Remedies
Child and youth family lawyers are equipped to pursue civil remedies against individuals or entities responsible for exploiting social media posts of children. This may include filing lawsuits for invasion of privacy, defamation, intentional infliction of emotional distress, or even negligence. For example, if a photo of a child in minimal clothing is shared without consent and leads to online harassment or bullying, the lawyer can seek compensatory damages on behalf of the affected child and their family, as well as injunctive relief to prevent further harm.
The federal Liberal government recently had two bills in front of Parliament, Bill C-63 and Bill C-412, which address the issue of the privacy and safety of children online. The Bills may be re-introduced when Parliament resumes after the recent prorogation, and should they receive royal assent, will change available legal avenues for young people experiencing online exploitation.
Suchetna Channan, K.C. is a family lawyer in Alberta.
Olufunke Fasunon is a lawyer in Alberta and a graduate of the Information Access and Privacy Protection Program at the University of Alberta.