Blogs about or involving children range from those by parents sharing their personal journey to those by media outlets and medical professionals. Whatever the nature of the blog, there exist a number of legal provisions that bloggers and other online platform users should adhere to in relation to children. This blogpost outlines the Kenyan law applicable to publishing content about children online, particularly consent, privacy, personality rights and the best interest principle. It also examines the ‘sharenting’ phenomenon and the legal considerations that it raises.

1. Consent

A child is a person under the age of 18.^[1] When blogging, there are instances where the consent of the subject is required, such as when publishing their photos or personally identifying information such as their name and contact details.^[2] Such consent can only be provided by the child’s parent or legal guardian. Kenyan courts have tackled this matter such as in the case of N W R & another v Green Sports Africa Ltd & 4 others (herein NWR) where the judge stated that children cannot be said to grant consent for use of their images on a billboard ‘for the simple reason that they lacked (sic) the requisite capacity to grant the consent on account of being minors.’^[3] It is therefore important for bloggers to ascertain the age of their subject and seek parental consent for these purposes.

2. Privacy and personality rights

A child’s right to privacy is reiterated on multiple occasions in the law. Article 31 of the Constitution declares every person’s right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily revealed.^[4] The Children’s Act provides that this right is subject to parental guidance,^[5] similar to Section 18 of the Media Act which places the interviewing or photographing of children under the domain of their parents or when at school, the school.^[6]

A case that is M W K v another v Attorney General & 3 others (MWK) where the footage of a group of minors partying in a bus was posted online. One of the minors, a girl, was arrested for possession of marijuana. However, nude pictures of the minor at the police station emerged online, raising questions on the manner of the search and the young girl’s dignity and privacy. The judge noted that there existed a  ‘significant public interest in ensuring that no duplication or distribution occurs in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what is reasonably necessary to give effect to her  constitutional rights.’^[7]

In JWI & another v Standard Group Limited & another, the respondents published photographs of minors alongside a news article that detailed the killing of their father and identified the minors as his children.^[8] However, this was done in the presence of their mother who also participated in the interview. The court therefore held that the mother’s consent waived the minors’ right.

Closely related to privacy are personality rights, which, as this blog has discussed before, is classified in two: publicity rights (the right to prevent others from using your likeness commercially with no permission or compensation); and, the right to be left alone and not have your personality published without permission.)

In Kenya, the privacy of children in the brick and mortar world and on online platforms has received increasing attention from courts.^[9] Similarly, the courts have upheld children’s personality rights on several occasions. In NWR, the respondents used a photograph of two children on a billboard advertisement without their parents’ consent and with no compensation. On whether the minors’ rights were violated, the court stated that the protection of one’s image is a key factor in personal development, and used a 3-step test to conclude that use of the minors’ images was contrary to their rights. The test is as follows: a) Use of a protected attribute, such as name and likeness; b) For an exploitative purpose such as commercial purposes. This precludes news reporting. c) No consent. In this case consent had to be given by the minors’ parents.

3. The child’s best interest is of paramount importance

The ‘best interest’ principle states that every matter concerning a child must take into account the child’s best interests.^[10] In M W K & another v Attorney General & 3 others (MWK), Justice Mativo observed that society ought to be sensitive to the inherent vulnerabilities and the varied interests of a child. Further, he stressed that the 2010 constitutional dispensation has established a new era which includes a societal mandate to nurture children in an environment that is conducive to their well-being and that any interventions should not have adverse effects on their development.^[11]

The internet offers a world of opportunity that could benefit children, including educational content and talent development opportunities. However, it also poses risks and far reaching consequences that a child may not fully appreciate.^[12] A new-age adage goes ‘the internet never forgets’. This has been found to be bitterly true for minors and young adults who have lost opportunities and suffered shame in their adulthood over content such as videos of themselves posted in their childhood.^[13]

A child is to be granted the opportunity and means to enable them develop wholesomely and in freedom and dignity.^[14] When blogging about minors, therefore, all precautions should be taken to ensure that the item does not interfere with the child’s all-round well-being, including their reputation and privacy. In Kenya, blogs have been known to share videos, photos and stories of minors engaging in risky behaviour such as drinking and flaunting traffic rules. Though protected by the freedom of expression and of the media, such content should equally be guided by the principle of the child’s best interest. A balance may be achieved by employing means such as blurring images and other identifying aspects of the minor. 

The best interest principle may also extend to parents blogging about their children as discussed in the section below.

4. Sharenting

Sharenting is the practice by parents of sharing aspects about their children online through blogs and social media.^[15] Children’s rights lawyer Stacy Steinberg provides an analysis of the parallel roles of gatekeeper and narrator of their children’s online presence. She notes that the two roles can be antagonistic, presenting a balancing act between the parent’s freedom of expression and the child’s right to privacy.^[16]

Innocent as it may be, a parent’s sharenting may sometimes be harmful to the child. Education reporter Anya Kamnetz  highlights some dangers that sharenting may pose to children: a) The information may be unwittingly damaging to the child’s future prospects such as college admission. b) Personal details of the child may be brokered. c) Online presence may lead to commodification and exploitation of the child. d) Sharenting may expose children to online predators. e) Where the child is involved in the creative process, such as posing for photographs, it may rob the child of time and childhood activities.^[17]

Such results are against the child’s best interests and should therefore be guarded against. Steinberg suggests several measures that parents can take to achieve this. They include educating themselves on privacy policies and online security risks, implementing anonymity for both themselves and their children when posting about confidential information such as health, avoiding sharing photos of children in states of undress and limiting information on the child’s or family’s residence and schedule. Lastly, she suggests that parents should always consider the long term effect of any information shared on the child’s future and psychological development.^[18] 

Conclusion

This blogpost has shown that children have special protections under law that shape how they should be depicted online. Children are protected from exploitation, abuse and intrusion from strangers behind keyboards, but parents too need to be aware that they could cause similar damage. The central theme in the legal protections is the child’s best interests, alongside her privacy. With the increasing use of blogs and other online sharing platforms, Kenya may expect to see a rise in cases involving the online presence of children.

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* Title adopted from the popular 90s family movie franchise,https://www.imdb.com/title/tt0097523/

^[1]Section 2, Children’s Act, CAP 141 Laws of Kenya.

^[2] See definition of personal data and identifiable natural person in the Data Protection Act: Section 2, Data Protection Act, (No 24 of 2019) Kenya. 

^[3] N W R & another v Green Sports Africa Ltd & 4 others (2017) eKLR. http://kenyalaw.org/caselaw/cases/view/135740

^[4] Article 31(c), Constitution of Kenya (2010).

^[5] Section 19, Children’s Act.

^[6] Section 18, Media Act (No 3 of 2007) Kenya.

^[7] M W K v another v Attorney General & 3 others (2017) eKLR.

^[8] J W I & another v Standard Group Limited & another [2015] eKLR

^[9] See M W K v another v Attorney General & 3 others (2017) eKL; FAF (suing on her own behalf and as a next friend of SAS and NAMS) v Norwegian Refugee Council (2019) eKLR; T O. S v Maseno University & 3 others (2016) eKLR.

^[10] Article 59, Constitution of Kenya (2010).

^[11] M W K v another v Attorney General & 3 others (2017) eKLR.

^[12] UNICEF, ‘Children’s rights and the Internet: From guidelines to practice’ 2016, 7.

^[13] Eichhorn K, ‘Why an internet that never forgets is especially bad for young people,’ MIT Technology Review, December 2019. https://www.technologyreview.com/2019/12/27/131123/internet-that-never-forgets-bad-for-young-people-online-permanence/

^[14] Principle 2, The United Nations Declarations on the Rights of the Child, 1959.

^[15] Meaki N, ‘The pros and cons of ‘sharenting’,’ The Guardian, 18 May 2013. https://www.theguardian.com/lifeandstyle/2013/may/18/pros-cons-of-sharenting

^[16] Steinberg SB, ‘Sharenting: Children’s Privacy in the Age of Social Media,’ 4 Emory Law Journal, 66, (2017), 842-844.

^[17] Kamenetz Anya, ‘The problem with ‘sharenting,’’ The New York Times, 5 June 2019. https://www.nytimes.com/2019/06/05/opinion/children-internet-privacy.html

^[18] Steinberg SB, ‘Sharenting: Children’s Privacy in the Age of Social Media,’ 4 Emory Law Journal, 66, (2017), 879-882.

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