Contextualizing Children’s Right to Privacy in the Digital Cosmos

Technological changes have been transforming our lives. The digital universe has opened up a Pandora’s Box of myriad issues ranging from the beneficial to the detrimental ones. In fact it is believed that if the world’s growing digital matter is printed and collated into a book it would form a heap that would stretch from planet Earth to Pluto ten times.[1] However, concomitant to the technical ingenuity the intensity of risk to cyber security has increased considerably and there has been an alarming increase in the incidence of cyber crimes, affecting both the adults and the children.

Many crimes that were conventionally committed offline such as stalking, defamation, pornography, criminal intimidation, intimidation, theft, cheating by personation, and even terrorism are now committed using the digital medium in cyberspace. Given these growing virtual occurrences, it is paramount to make the discourses concerning cyber security, data protection and privacy the mainstay of our executive, legislative and judicial frameworks.

While the right to privacy is now well-established in international law,[2] the notions of privacy have continued to vary noticeably across cultures, societies, traditions and time. Technological ingenuity has led to an expansive interpretation of the concept of privacy to include a right to the protection of personal information or data. In the post-privacy world[3], the children have been using the computers, mobile phones, tablets and TVs for scores of purposes. The usage is spread across diverse functions like, for entertainment (by downloading or watching the content online or even playing games online), or for school or academic work. Along with this, even parents have been digitally documenting their children’s lives by sharing the “personal information about their children or their data” and discussing their lives on various social media portals.

As more and more children around the world have been spending more time on the internet, there has been an alteration in the notions of children’s rights to privacy, the protection of their personal information and reputation by the digital technology and the Internet. The relationship between privacy, technology and its effect on children is increasingly becoming complex. In this milieu, the time is opportune to raise questions about-

  • The Nexus of technology and its misuse in causing harm to children;
  • “Sharenting”[4], when parents over share information online about their child’s life; and
  •  Digital Privacy of the information/ data concerning children.

An appraisal of these issues is essential for understanding the meaning of children’s rights in the virtual world. Pertinently, the Convention on the Rights of the Child (for short “the CRC”) recognizes that children have a specific right to privacy. Art 16 of the CRC is the relevant provision that reaffirms the mandate of the treaty law as stated in the Universal Declaration of Human Rights (UDHR), 1948[5]and the International Covenant on Civil and Political Rights (ICCPR), 1976[6].

With India also en route a digital economy with the adoption of Aadhaar[7] and an escalating reliance on information, the apprehensions over cyber security, data protection and privacy are warranted. In fact, in the wake of the victimization of children by cyber crimes, some specific legislations like the Protection of Children from Sexual Offences Act, 2012 (POCSO) have come to occupy the field.

Notably, last year in August 2017, the Hon’ble Supreme Court of India held in the matter of Justice K. S. Puttuswamy v. Union of India[8] that the right to privacy is a fundamental right (includes “right to be let alone”). Through this judgment, the right of an individual to exercise control over his/her personal data was also recognized. The Court opined that-

“…481. The right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet.”

The Court went a step ahead and made an observation pertaining to the “privacy of the children” in the following words:

“…485. Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their ‘ABCs’: Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram.383 They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.” [Emphasis added]

In another significant ruling, in Weller & Ors v. Associated Newspapers Ltd[9], the respondents were held liable for misuse of private information [and breach of the Data Protection Act (for brevity ‘DPA’)] when they published seven unpixilated photographs of musician Paul Weller and his three young children, captured in a street in California when relaxing in a Cafeteria. The case emphasized on the need for coherence on firstly, the clicking and publishing of the photographs – concerning the celebrities and their children, and to children in general; secondly, to the existence of “reasonable expectation of privacy” for children; and thirdly, the approach followed by the parents towards a child’s privacy, specifically, when the child is too young to have an understanding of privacy.

In the instances of sharenting, for facilitating online identity and / or reputation protection, the General Data Protection Regulation’s (GDPR) “right to be forgotten” provision applies in the European Union (EU). Individuals (even infants and children), as digital rights-holders, have a right to request the deletion or redaction of their personal information from the search engine results. However, “an appreciable benefit for the child”could justify an invasion of the child’s privacy.[10] Overall,it is a difficult balancing act.

Children should be motivated to responsibly and diligently use the digital medium, and should be able to access material that helps them to make informed political, religious, societal and sexual choices.


This article has been authored by Surbhi Kapur from Team LawSkillsTo learn more about data protection, you can visit our course on Information Technology and Data Protection Law in India.

For knowing more about crimes against children, especially cyber-sexual crimes like online grooming, you can visit out course on Sexual Violence Against Children: Inform, Prevent, Protect. 

To know more, visit –


[1]Richard Wray, Internet Data Heads for 500bn Gigabytes, GUARDIAN (May 18, 2009), available at https://bit.ly/2QLpy6w (Last visited December 11, 2018 at 10:57 PM IST) cited in McKay Cunningham, Complying with International Data Protection Law, 84 U. CIN. L. REV. 421, 450 (2016)

[2] Louis Brandeis and Samuel Warren, The Right to Privacy, 4 HARV.L. REV., pp. 193–220 (1890)

[3] Michael Kosinski, Living in a Post- Privacy World, STANFORD ENGINEERING ( May 09, 2018), available at https://stanford.io/2Gezhya (Last visited December 11, 2018at 11:24 PM IST)

[4] Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 EMORY L.J. 839 (2017)

[5] Article 12 of the UDHR

[6] Article 14 of the ICCPR

[7] Enrolment of infants in the biometric- based identification system under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016- See https://bit.ly/2PBaVxM (Last visited December 12, 2018 10:36 PM, IST)

[8] MANU/SC/1044/2017

[9] [2015] EWCA Civ. 1176

[10] Marion Oswald, Helen James & Emma Nottingham,  The Not-so-secret Life of Five-year-olds: Legal and Ethical Issues relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media, J. OFMED. L., 8:2, 198-228 (2016) 

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