Respecting children's privacy rights
Notes from some expert panels on promoting and protecting children's privacy
A legal information post instead of an essay today. This is emphatically not legal advice. If you like what you’re reading, pass it along to a friend and/or sign up for free biweekly emails.
I recently attended a bunch of panel discussions about children’s privacy rights, both generally and in the context of ever-present digital technology. In this post, I’ll highlight some of the bits that I found particularly insightful. You’ll also find links to various resources to help talk with children about their privacy and to help make sure your own practices respect children’s right to privacy.
Children’s privacy rights are protected under article 16 of the United Nations Convention on the Rights of the Child (child-friendly PDF). Like all rights under the Convention, the right to privacy is inseparable from other rights: for example, privacy supports children’s freedom of thought, religion and conscience (article 14) and protects them from potential discrimination and stigmatization (articles 6, 40). The right to privacy also goes hand-in-hand with the right to information (article 13), since ensuring children’s access to information about themselves also means ensuring children know they have a right to protect that information.
With increasing screen time at home, at school, and in the community, the right to privacy works alongside the right to be free from violence and exploitation (art 19), the right to adequate living conditions for healthy development (art 27), and the right to leisure (art 31). Over the course of the pandemic, on-and-off emergency remote learning has led to privacy being discussed in the context of the right to education (arts 28 and 29). As my colleague Marie-Pier explained at a panel organized by the University of Ottawa’s Laboratoire de recherche interdisciplinaire sur les droits de l’enfant (disclosure: I’m a student member of the lab), questions around children’s rights in the digital age have become so prevalent that the United Nations Committee on the Rights of the Child released a general comment about children’s digital rights, based on international consultations with governments and with children.
In the legal context, the Ontario Bar Association a few weeks ago brought together four expert lawyers to talk about children’s privacy rights (more disclosure: I was one of the event organizers). The panelists noted that Canadian law continues to struggle with respecting children’s rights, including privacy. Legal privacy concerns relating to children arise in youth criminal justice, health care, child protection, family law, and education, among others. In all cases, adults have a duty to ensure children’s privacy rights are respected.
Depending on which area of law we’re talking about, the rules can be very different. In youth criminal justice, no information about a child facing criminal proceedings can be disclosed except in very narrow circumstances and to very specific people—even the accused or convicted youth has to ask the court permission to talk about their proceedings to third parties. In child protection and family law proceedings, the child’s best interests take centre stage, and the child’s right to privacy forms part of the analysis. Moreover, information about a child that is in the hands of child protection agencies can only be disclosed with the permission of the child in question, subject to certain exceptions.
In the Ontario health care context, children have full control over their health information if they have the capacity to consent to medical treatment, regardless of their age. In the education context, information about a child that is contained in school records is privileged: it can only be accessed by the child or their parents/guardians, or by school officials for education-related purposes. However, children’s privacy in schools isn’t absolute: the courts have found that privacy interests have to be balanced against school safety (e.g. searches), though surveillance of students for non-safety, non-school (and criminal!) purposes is prohibited.
Returning to children’s digital privacy, Ontario’s Information and Privacy Commissioner marked Privacy Day on January 28, 2022, with a wide-ranging discussion involving researchers, educators, regulators, and a student trustee about “Empowering a New Generation of Digital Citizens”. They spoke about the importance of being attentive to children’s evolving capacities when it comes to the digital environment and about how school curriculum can help support digital citizenship. The panelists also spoke about the need for companies and service providers to ensure children receive meaningful information about the collection and use of their data—not just pages of legal boilerplate—in order to help remedy the “privacy disrespecting ecosystem” that is so prevalent online.
Over the course of the discussion, it became clear that children’s offline and online lives are today completely integrated. This means that adults—whose duty it is to uphold children’s rights—need to not only respond to isolated concerns but also think about structural factors that impede healthy digital citizenship. More fundamentally, children need to be taught about their rights and how to exercise them, so that they can take measures to protect themselves and to hold others to account if their privacy is threatened. In the end, adults, in particular family members, have to take responsibility for modelling healthy digital citizenship in their own lives so that children grow up learning that privacy is important and worth protecting.
Here are links to some potentially helpful resources about children’s privacy. If you’d like to suggest others, feel free to link to them in the comments.
Children and Youth in a Digital World (Information and Privacy Commissioner Ontario) — multiple resources, including games and activities, curriculum, and guides for professionals who interact with children
Fact Sheet: Children’s Right to Privacy (Canadian Coalition for the Rights of Children) — research summary from the eQuality Project
Student Privacy and You (Ontario College of Teachers)
Age appropriate design: a code of practice for online services (UK Information Commissioner’s Office) – a children’s code for private sector privacy
Can a child provide consent? (Canadian Medical Protective Association)
Addendum 10 February 2022. Here are some parent-focused suggestions from Marie-Pier via LinkedIn:
Steinberg, S. B. (2016). Sharenting: Children's privacy in the age of social media. Emory LJ, 66, 839.
Steinberg, S. (2020). Growing Up Shared: How Parents Can Share Smarter on Social Media-and What You Can Do to Keep Your Family Safe in a No-Privacy World. Sourcebooks.