Pink feeling blue about social media

30 April 2019 | Applicable law: England and Wales, US

This article, authored by Withers' partner, Amber Melville-Brown was initially published by Private Wealth on April 29, 2019.

In a recent interview with American chat-show host Ellen DeGeneres, the Grammy Award winning singer P!nk announced that she would no longer be sharing photographs of her children on social media. The songstress is no stranger to social media, with 32 million Twitter followers, and six million more on Instagram. But those fans eager to gain an insight into the "private" family life of the diva beyond her onstage public persona will be sorely disappointed. And it seems they only have themselves to blame.

"There's something seriously wrong with a lot of you out there", P!nk posted on Instagram, having been criticized on the site for posting a photo of her, her two year old son and his elder sister—and an unexpected visitor onto their poolside patio, a pelican.

But it was private parts, not a pelican that caused the outcry. Seemingly unnoticed by Mom—who was presumably more concerned with ensuring the big brown bird in the foreground of the picture didn't cause her own brood in the background any harm—her son had at some point before the snap was papped, removed his nappy. "As any normal mother at the beach, I didn't even notice he took of his swim diaper," P!nk's angry replacement text to the offending photo now reads.

But this is a timely reminder, that before posting any such sweet and unusual photo, mums would do well to pay careful attention not only to what is caught on camera, but what is then posted online. Before putting information or images into the public domain about their children, one is wise to opt for the "mark-up" function on a photo to edit out anything that might be problematic for a child. P!nk has now scrawled thick black scribbles in the appropriate place which should save the boy any online embarrassment when he becomes a man. But the unedited version allowed some social media trolls, noticing that the boy was pants-free, to feel free to call-out the vocalist for allowing her son to be wearing less than a three-piece-suit on the beach, or for being photographed in such a state of undress.

P!nk turned the air blue on her Instagram site, saying—expletives omitted—"I'm turning off my comments and shaking my head at the state of social media and keyboard warriors. And the negativity that you bring to other people's lives."

Celebrities and others who earn their living by being in the public eye have to walk a fine social media line. Being "off grid" just doesn't hack it if you want to get your message and your product out to your fans and followers. So allowing viewers—voyeurs?—a little peak into what otherwise would be their private sphere makes these celebrities appear more normal, more approachable, more like the rest of us, which in turn makes them more successful, more profitable and even more celebrated.

But opening the door to your own world, to the wide world, can be dangerous. It allows strangers to feel that they are entitled to voice their opinions, no matter how cruel or hurtful, as if they knew you personally. But worse, whether you are a celebrity, CEO of a company, head of a private family or indeed any parent, it can also put you and your family at risk to allow the media spotlight to shine too brightly on your children. Pictures of your kids online makes them easily identifiable. Pictures identifying where the images are taken—at home, at school, on holiday—can enable those with mendacious motives to track them down. They can be put at risk of online bullying or harassment themselves. Or worse, become kidnap risks while wealthy parents are subjected to threats and extortion.

Jurisdictions across the world have differing rules and regulations to deal with online abuses. Most courts, in locus parentis, and some reputable online service providers, appreciate the need to protect the young and the vulnerable. Many websites operate their own terms and conditions to guard against anti-social social media behavior. While many jurisdictions have enacted data protection and privacy laws.

Robustly protective are various European privacy laws, where the courts will weigh the right of an individual with a "reasonable expectation of privacy," against another legitimate right, for example the right to free speech. Time and again European claimants seeking to protect the interests of children have been pushing at an open door when it came to shutting the door on intrusions by the press. In the notable case of PJS v. News Group Newspapers in May 2016, the English Supreme Court upheld an injunction preventing the identification of a couple over an alleged extra-marital affair, despite the fact that the identities of some of those involved were said to have been widely published in other jurisdictions and loudly voiced on social media. A major factor in the decision-making was the protection of the young children of the relationship. Lady Hale in her Supreme Court judgement reminded us that in addition to the rights of their parents, "children have independent privacy interests of their own" and that—in the context of stories published by mainstream media, and satisfying the Independent Press Standards Code—"editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of [children]."

On this side of the Atlantic, the First Amendment in the United States is preyed in aid of free reporting. But even in the land of free speech, there is not blanket protection for free speech. And privacy legislation can provide some comfort blanket for parents to protect their progeny from the paparazzi. Causes of action for intrusion into seclusion, public disclosure of private facts, false light and appropriation of likeness are joined by COPPA, the Children's Online Privacy Protection Act of 1998, which requires parental consent for the collection or use of any personal information of website users under 13. But of course, where that consent is forthcoming—or where it is the parents themselves who are intruding into their children's seclusion or publicly disclosing their private facts—what protection for our youngsters then?

"There is a shared responsibility to protect, respect and realize the rights of the child," Unicef has said.

"Governments businesses, parents, educators and children all have a role to play in advancing children's privacy and freedom of expression in a digital world." We are all in this together. And surely the easiest place to start is close to home, with those of us who are parents. Some celebs trot their children down the red carpet at the drop of a camera, or parade them in front of the paps as overdressed, fashion-obsessed "mini-me" accessories. Other parents guard their offspring and their privacy like ferocious felines, ready to pounce like a lioness to prevent any unauthorized image or incursion into their private life.

It must be tempting for celebrities, where how much you are "liked" on social media can impact what roles they are offered and what sponsorship deals they can command. And if their pedigree is improved by a few photos of their little pride and joy, then no harm no foul. But the line should be drawn at the, albeit fuzzy, line where their own personal lives end, and those of their children begin.

Actors Halle Berry and Jennifer Garner may have feared a media backlash when they rode into battle for privacy protection for minors five years ago, but they understood the dual need to keep their own profiles high, but those of the children low. Jennifer Garner reportedly told the Assembly Judiciary Committee while petitioning for a change in the law, "I chose a public life and understand that this means sacrifices in terms of privacy for our jobs. In my case this means that I am sometimes photographed. However, my three children are private citizens and more than that…they're just little kids."

Where our little nippers are put in the line of fire, even on the side lines, there is a real risk that they will sustain collateral damage in the cross fire of the camera. Adopting the terrifying tigress approach may not buy you many followers or "friends," but it provides the better protection. And in the case of Berry and Garner, it resulted in more robust legislation to protect children from media harassment.

P!nk was right to see red over the hostility she received on social media. But she is even more right to keep her kiddos shielded from the public eye. However attractive, we must try to ignore the siren song of social media, and share our children only with our family and our real friends—not with countless strangers—and get just a little smarter when we reach for our smart phones.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


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