The damage has already been done, said the Court of Appeal in the recent ‘celebrity threesome’ decision (PJS). Those who want to know probably already know, so the injunction preventing the identification of the individuals must be set aside.
The internet and social networking ‘have a life of their own’ and the Court has its hands up in defeat when faced with publications by foreign media combined with the information retrieval power of digital technology. The individual can still claim damages for breach of confidence or misuse of private information, the Court added but this is cold comfort to those who wish to take pre-emptive steps to protect their privacy. The case demonstrates that when personal information is ‘out there’, there can be no guarantee that any privacy in such information will endure.
And that information could be about a child. This is a pressing issue for ‘Generation Z’ (a term used to categorise young people who have grown up with technology and the Internet, and who regard use of social media websites as an integral part of their private and social lives). In our research, we are concerned with the youngest members of Generation Z. These young children are often very adept at using technology, but have little awareness of the impact of social media. They will appear on social media because of the actions of others, such as parents posting photographs on a Facebook or Instagram page, or even opening a Twitter account for their baby.
Where young children feature in fly-on-the-wall reality documentaries on broadcast media, however, they can become the target of comment on social media outside of their immediate friends and family. This content is discoverable long after the original broadcast by means of the inevitable hashtag. We might call them ‘Generation Tagged.’
Recently, reality programmes have begun to feature ever younger children, often under the mantle of behavioural advice or social experimentation. Examples include ‘Boys and Girls Alone’, ‘Three Day Nanny’, ‘My Violent Child’, ‘Born Naughty?’, ‘Child Genius’ and ‘The Secret Life of 5 Year Olds’. Such programmes are now less ephemeral than in the past. They are available for long after original broadcast on the Internet via on-demand services or repeated on various spin-off channels. The associated social media interaction makes that broadcast part of the online record.
How is it that we have sleepwalked to a position where this type of privacy-intrusive programming has been accepted as the norm? Many of the dramas exposed in the programme ‘The Secret Life of 5 Year Olds’ for instance, are intensely personal: expressions of love; kisses; grief. The comments made by the professionals about the children’s characters and how their behaviour should change would, in a medical or educational context, be subject to degrees of confidentiality. The publication of a hashtag invites negative comment (as our analysis of Twitter messages demonstrated). Such comment could adversely affect the privacy and dignity of the child, particularly so if other information released about the children and their families creates a risk of jigsaw identification. Harm might occur if, for instance, a future employer sees that as a child, a job applicant was regarded as autistic or a bully.
We wonder how child welfare considerations which apply in ‘real-world’ care, education and medical environments can be so easily overcome in the world of broadcast programming. Our freedom of information requests to the educational and health bodies linked to ‘The Secret Life of 5 Year Olds’ revealed that no ethics committees or similar had considered the involvement of the staff in the programme, because the work had been done outside normal working time and/or the data associated with the programme had not been accessed by the institution for research purposes. Channel 4 relied on the so-called journalistic designation – which excludes information about journalism and creative output from the Freedom of Information Act – to refuse to confirm the details of how compliance with welfare considerations under the Ofcom broadcasting code had been achieved.
The children featured in these programmes become mini-minor celebrities in their own right but they become so due to the actions of others. Despite the unstoppable nature of social media, they should not suffer the same fate as the not-so-mysteriousPJS. It cannot be acceptable that such children may be left only with the options of claiming damages after the event, or of attempting to exercise their ‘right-to-be-forgotten’ in later life. We should as a society step back and consider whether we want private childhood moments to become eternal public entertainment and the subject of public social media comment. If not, then we need a more effective way of ensuring that the ‘best interests of the child’ is hard-wired into the ethical and legal process before the privacy intrusion occurs. We call for the creation of an ‘amicus brief’ for young children in the position of those in ’The Secret Life of 5 Year Olds’. This independent expert would be required to consent to the involvement of the child in the programme (in addition to the consent of the parents being obtained) and tasked with considering not only the immediate risks but those that could arise in the future.
- The Centre for Information Rights at the University of Winchester will be hosting the Third Winchester Conference on Trust, Risk, Information and the Law on 27th April 2016 – details here.
- Oswald, Marion and James, Helen and Nottingham, Emma, ‘The Not-so-Secret Life of Five Year Olds’: Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media (April 3, 2016). Available at SSRN.
This post originally appeared on Information Law & Policy Centre at IALS blog and is reproduced with permission and thanks.