Marion Oswald asks if our laws are keeping up with social media? The Supreme Court’s ‘Celebrity Threesome’ judgment means the jury’s still out.
In PJS  UKSC 26, the Supreme Court gave a clear message – children, even those of celebrities, have independent privacy rights of their own. Lady Hale, an expert in family law, set out that there has to be an exceptional public interest in a story to override the 'normally paramount interests' of young children. A 'kiss-and-tell' revelation such as this one would not hit that mark, the Court said.
The parents in this case no doubt brought the action, not only out of concern for their own privacy, but also to protect their children from further harm. There are children, however, who are exposed on the internet and on broadcast and social media with the consent of those whose job it is to protect them.
Invading the privacy of 'live by the media; die by the media' celebrities does raise ethical and legal questions, but the issues are different when the information 'out there' is about a child or a vulnerable adult - and, increasingly, it is.
The label 'Generation Z' is familiar: the babies of the 90s who have grown up with the internet and social media as essentials to their private and social lives. Newest members of Generation Z, born since 2010, are often exposed from birth, as their baby photos appear on Facebook, Twitter or Instagram - tagged of course, and potentially with a life of their own.
The Twitter conversations drummed up by fly-on-the-wall documentaries, with the inevitable hashtag on-screen at all times, may seem harmless fun – after all the participants consented to being filmed. But where young children are the subjects, it is parents who give consent, and as the broadcast footage and surrounding tweets become part of those children's lives, any fallout is something they will just have to learn to live with. These children are 'Generation Tagged'.
The expert commentary in programmes such as 'Boys and Girls Alone', 'Three Day Nanny', 'My Violent Child', 'Born Naughty?', 'Child Genius' and 'The Secret Life of 5 Year Olds' lends them some authority. But the spin of an editor can appear to encourage bitchy comments in the associated tweeting.
How has society got to the position that the deliberate exposure of children on mainstream TV is considered entertainment? Few adults would want their true feelings of love, grief and values to be broadcast so freely, and with an unpoliced comment channel provided for free. But in 'The Secret Life of 5 Year Olds' that's exactly what happened and research from the University of Winchester's Centre for Information Rights shows the tweets included some negative comment and identifying information. What harm might occur if, for instance, a future employer sees that, as a child, a job applicant was regarded as autistic or a bully?
A further concern is that freedom of information requests sent to the educational and health bodies linked to 'The Secret Life of 5 Year Olds' revealed that none of their ethics committees had considered the involvement of the children in the programme. And Channel 4 claimed journalistic exemption to avoid answering a request about how compliance with welfare considerations under the Ofcom broadcasting code had been achieved.
The children featured in these programmes become mini-minor celebrities, but wholly because of the actions of others. It cannot be acceptable that Generation Tagged are left only with the options of claiming damages after damage is done, or of attempting to exercise their 'right-to-be-forgotten' in later life.
The University of Winchester's research team concluded an independent legal representative should be created for young children in the position of those in 'The Secret Life of 5 Year Olds'. As well as the parent, this expert would also be required to consent to the involvement of the child in the programme, and would make sure that not only the immediate risks, but those that could arise in the future, are considered.
It is time to step back and ask if we really want private childhood moments to become eternal public entertainment and fuel for public social media comment. If not, then we need a way to ensure the best interests of the child are hard-wired into the ethical and legal process before privacy is lost.
Marion Oswald is a Solicitor. She is Senior Fellow (Knowledge Exchange) and Head of the Centre for Information Rights in the Law Department at the University of Winchester. Twitter: @_UoWCIR