Social Media and the Law in the Context of Family
You have to show cause for your existence in this age by leaving gushing parental footprints online. You have to fulfil your purpose on earth by showing how you participated in the procreation process and contributed to the longevity of mankind. So raising a child on social media is the closest you can come because raising a child on social media isn’t about how good you are at being a parent, but rather how good you can be at successfully selling this impression to a large gallery. – Jackson Biko, blogger at bikozulu.co.ke
Kenyan lifestyle blogger Bikozulu once wrote a piece titled: “#How to be a Social Media Mom”. Biko’s article covers some of the “irritating” things adults do on social media, especially parents. These include posting ultra-sound images, maternity photo shoots, attention-seeking status updates that tend to border on over-sharing. Once the babies are born, family and relatives will literally post millions of photos and videos of these kids on social media.
It is generally agreed that children are the most vulnerable subjects of content shared on social media therefore their constitutional rights must be carefully considered and protected by parents and the wider society. This blogpost considers this growing trend of social media parenting in the context of protection of children’s rights, privacy, safety and security as guaranteed by the laws of Kenya.
Kenya ratified the United Nations Convention on the Rights of the Child (CRC) on 31st July 1990. The enactment of the Children Act of 2001 gives effect to the obligations of Kenya under the CRC and the African Children’s Charter. In compliance with the CRC, section 2 of the Children Act defines a child as any human being under the age of eighteen (18) years. Under Article 26(2) of the Constitution, the life of a person begins at conception which means posting those ultra-sound photos of your child on social media may constitute an infringement of rights both under the Children Act and the Constitution.
The general rule of thumb is that any person who appears in photos and videos has the constitutional right to human dignity and privacy, whereas the person who shares photos and videos enjoys the right to freedom of expression enshrined in the Bill of Rights of the Constitution. However the Constitution clearly limits the right to freedom of expression by stating that this right must be exercised in a manner that respects the rights and reputation of others.
Article 53 of the Constitution provides special rights for children including the right to be protected from abuse, which may well occur when certain photos and videos of children are shared on social media by any person, including parents. Therefore a child’s best interests are of paramount importance in every case where a child’s photos and videos are shared on social media. This legal position is reaffirmed by various provisions in the Children Act.
This blogger submits that the focus of social media and children law seems to focus only on the protection of children from explicit content but there is very little discussion about protection of children where they themselves are the subjects of the online content such as the present case of ‘social media parenting’. The only exception to this prevailing position is the case of child pornography.