Privacy Rights of Children in the Digital Age

By Michelle FormyDuval Lynch

Do children have a right to privacy? Yes, but those rights are not always clearly defined and often depend on the actions of the parents. This is especially so in the digital age, where a picture can be shared with millions of people almost immediately.  A recent opinion by the Ninth Circuit Court of Appeals illustrates how privacy rights of children may be an afterthought, and when the child realizes their privacy has been invaded, there may be little or no recourse.

Before the internet became open to the public in 1993, and social media came into widespread use in the early 2000s, no one worried about pictures being shared, much less about photos or videos going “viral.” Generally, pictures stayed in the family album or wallet.

That was the case in 1991, when the relatively unknown band Nirvana released the album “Nevermind.” The album cover features a picture of a naked infant in a swimming pool, who appears to be reaching for a dollar bill on a fishhook. The infant, Spencer Elden, has stated that his parents were paid $200 for the picture by a photographer, but they never signed a release and were told any published image would have a sticker covering his genitals.

Apparently, there was discussion within the band about covering the infant’s genitals, but the decision was made in the negative. In December 2023, The Ninth Circuit Court of Appeals noted that the cover art for “Nevermind” featuring Mr. Elden, now in his 30s, has become iconic and highly recognizable; it has been displayed in the Museum of Modern Art in New York City. The “Nevermind” cover is frequently referenced, imitated, and parodied. The court opined that the naked infant reaching for a dollar “symbolizes the ills of a capitalistic society” (Elden v. Nirvana L.L.C., 88 F.4th 1292,2023). So why is the Ninth Circuit commenting on this album cover?

Mr. Elden sued Nirvana and its record company in 2021 for a violation of 18 U.S.C. § 2255. Under that statute, a person may bring a civil suit for damages for personal injuries suffered when they were a minor. Elden alleges the injury is child pornography, although criminal charges have never been filed. The suit was dismissed due to it being filed outside of the 10-year statute of limitations, but Elden appealed, and the Ninth Circuit reversed by opinion filed December 21, 2023. The court ruled that each republication of an image may constitute a new personal injury with a new deadline, noting the image’s appearance on a 30th-anniversary reissue of Nevermind in 2021. The Court noted that the question of whether the album cover meets the definition of child pornography was not at issue in the appeal. That question is a matter of contention, and it will be interesting to see how that question is answered when the case is resolved.

In response to the court’s ruling, Nirvana’s lawyer told Rolling Stone that the setback did not change their view of the “meritless” case, pointing out that Elden’s willingness to associate himself with the Nevermind cover over the years, such as selling autographed copies of the cover and recreating the photo for a pay, proved he didn’t suffer any damages.

Without a doubt, most people know that publishing pictures of undressed children could result in a criminal or civil suit. Whether Elden’s parents took appropriate precautions in 1991 is up for conjecture, but since the internet was in its infancy and not accessible to the public at that point, they probably had no idea that in the future, the image could be shared with the entire world with one click.

The consequences are much more immediate in today’s digital age, so everyone must consider what can happen when sharing photos, facts, or details.

A recent article in Forbes pointed out that parents are already some of the biggest violators of their kids’ privacy due to “sharenting” (parents sharing information). Due to sharenting, children growing up in a post-privacy world might assume that they have no right to keep their data private. Forbes also warned that the majority of identity fraud in the future may be due to sharenting. A name, date of birth, and address (often easy enough to find in an online search or geotagged birthday party photo on Facebook) shared online may be found by bad actors, who store the information for later use when the child reaches the age of majority.

The Washington Post has pointed out that due to new artificial intelligence tools and the ability to make “deep fake” photos and videos, the risks of posting pictures online could result in fake photos or videos of you or your child that may be very hard to erase. Identity fraud or faked photos or videos aren’t the only concern. Many children decide they do not agree with certain photos or facts about their lives that were shared to the public or even limited audiences on the internet.

This can be especially true when the post concerns a court case involving the child.

In juvenile cases, online posts about the parties and facts in a case is a concern for everyone involved. By law, anyone involved in a juvenile case cannot divulge any information, and court files in those cases are confidential and private. While appellate opinions in child welfare and juvenile delinquency cases in North Carolina are published online and therefore open to the public, pseudonyms must be used to protect the identities of the juveniles. Even with those restrictions, the identities may become evident or discoverable due to the facts and names included in the opinion.

Unlike the past, appellate opinions are widely available on the internet and often do not require a specialized research tool.

While attorneys and others cannot comment on these cases, parents are not restricted in the same way. Sometimes they post about cases involving their children, especially if they do not agree with a ruling in the case. While parents have the First Amendment right to freedom of speech, children have a right to privacy. The interaction of these rights overlap, and it is not clear how to resolve them in interaction with each other. When a parent shares information with social or other media about a court case involving their child, there is a risk the child is affected. The child may not realize it until much later. They may discover information was shared that they would rather have remained private, and they had no voice in the matter.

While there are certain routes to remove an individual’s “online footprint” from the internet, it isn’t easy, and there is no way to know who may have saved or shared that information.

Some parents share information about their children as part of their work as a social media influencer or blogger. Illinois recently amended their child labor laws to ensure that child social media influencers are compensated for their work. The law will go into effect on July 1, 2024, and requires video bloggers (“vloggers”) to maintain records of their children’s appearances and set aside gross earnings for the child in a trust account until they turn 18. A spokesman for the Illinois governor stated, “Children deserve to be shielded from parents who would attempt to take advantage of their child’s talents and use them for their own financial gain.” The law is not meant for parents who share photos or videos of their children on social media for family and friends. It applies to families who make their income from child vlogging and family vlogging.

There are some laws protecting children’s privacy online and more are being considered.[1] The Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501-06, regulates the online collection of personal information about children under the age of 13. Congress is now considering the “Kids Online Safety Act,” which would require covered platforms to take reasonable measures in the design and operation of products or services used by minors to prevent and mitigate certain harms such as sexual exploitation and online bullying. The U.S. Senate has scheduled a hearing for January 31, 2024 (Big tech CEOs testify before Senate Judiciary Committee on child sexual exploitation), where the top executives in Meta, TikTok, and others will testify as to their failure to protect children online. States are also getting involved.

Another act created to protect children’s privacy is The California-Age Appropriate Design Code Act, which will become effective in July 2024 and is modeled after the United Kingdom’s Age-Appropriate Design Code. It is intended to modernize online protections for children 17 and under, and requires businesses that provide an online service, product, or feature likely to be accessed by them to comply with numerous provisions. These provisions include a prohibition on profiling and the collection of a child’s precise geolocation (unless there is a compelling reason), barring the collection and use of personal information that is not necessary for the service, and prohibiting use of “dark patterns/nudging” or taking any action it knows or has reason to know, is “materially detrimental” to the physical health, mental health, or well-being of a child.

There are many legal issues yet to be considered or determined in regard to the internet and privacy rights of children. While Elden v. Nirvana did not originally involve the internet, it illustrates how actions regarding a child’s image may have major consequences as the child reaches majority and technology advances. It will be interesting to see the outcome in that case and if the parents’ actions have any impact. We should all take necessary steps to ensure that private information, especially in regards to our children or children we represent, is protected. Certain precautions should be taken when sharing anything on the internet, and for ultimate protection, experts advise to not share at all.

[1] 1) The Children’s Online Privacy Protection Act (COPPA) of 1998, 15 U.S.C. §§ 6501-06, gives the Federal Trade Commission (“FTC”) authority to regulate the online collection of personal identifying information about children under the age of 13 and makes it illegal for websites and online services to collect personal information from children under 13 without parents’ verifiable consent; (2) Proposed Kids Online Safety Act:; (3) “States Move to Protect Minors Online with Patchwork of New Laws:” hearing for January 31, 2024, where the top executives in Meta, TikTok, and others will testify as to their failure to protect children online. States are also getting involved.