Child Privacy In The Digital Age And California’s Child Deletion Statute

By: Michael Shepherd[*]


In the current era of social media, parents and others constantly post pictures and reveal information about children on the Internet. As of 2010, ninety-two percent of children had an online presence by the age of two.[1] This Note will examine whether parents and others’ use of social media infringe on the privacy rights of children and what protections a recent California statute gives to children’s digital privacy.

A recent case sheds light on this emerging issue. In Sakala v. Milunga, the plaintiff alleged the defendants induced her to come to the United States from Zambia and then held her as an involuntary servant for nearly ten months.[2] In November 2014, the plaintiff accepted an offer to work for the defendants for one year, which included caring for their minor son.[3] During this time, the plaintiff took prosaic photographs of the child and posted them on Facebook.[4] The plaintiff was never paid for any work she performed for the defendants.[5] Thus, the plaintiff sought damages in federal court from the defendants under international, federal, and Maryland state law.[6]

The defendants counterclaimed.[7] Among the six counts raised in the counterclaim, the last count alleged that the plaintiff infringed on the defendants’ right of privacy by publishing pictures of their minor child on Facebook without consent.[8] The district court dismissed all six counterclaims, stating that each “fail to allege essential elements, are stated in conclusory fashion, and rely on rampant speculation.”[9] The dismissal of the privacy claim was based on historic child privacy laws that were not tailored to the digital age.[10]


Privacy rights of children historically concerned only child celebrities. In Sidis v. F-R Publishing Corp., the plaintiff was a national celebrity as a child in the early 1900s.[11] In 1937, The New Yorker published an article that included sketches of Sidis as a child.[12] Sidis sued the magazine, arguing that he had a right to privacy under state law.[13] The court disagreed, holding that Sidis’s life was a “matter of public concern” because of his fame as a child.[14]

Almost forty years after Sidis, the Restatement (Second) of Torts included the invasion of the right to privacy.[15] An invasion of the right to privacy could be found in four circumstances: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of the other’s name or likeness; (3) unreasonable publicity given to the other’s private life; (4) or publicity that unreasonably places the other in a false light before the public.[16] These four forms of invasion are cemented in American courts and are actionable under tort liability.[17]

Because this tort was recognized before the Internet, it mainly focuses on providing a remedy to someone whose privacy was invaded by the press. Additionally, there are no existing cases where a child has sued a parent or other adult under this tort.[18] This is most likely due to the child-parent immunity doctrine.[19] Nonetheless, the invasion of a child’s privacy now had an avenue for seeking a remedy.

However, a child’s remedy for invasion of privacy may be severely limited by their fame or lack thereof.[20] In Lawrence v. A.S. Abell Co., a woman consented to a photographer from a local newspaper taking a photograph of her infant and her friend’s infant while at a festival.[21] The next day, photographs of the infants appeared on the front page of the newspaper with a caption indicating their names, ages, and the location where the photographs were taken.[22] About six weeks later, the newspaper began an advertising campaign that included the infants’ photographs on billboards, commercials, and rack cards.[23] The mothers of the infants sought compensation based on invasion of privacy and unjust enrichment.[24] The Court of Appeals of Maryland applied the Restatement (Second) of Torts’ four forms of invasion of privacy.[25] The court held that the republishing of the children’s photographs was not actionable because the infants’ name or likeness did not have “commercial or other value.”[26] Thus, a newspaper republishing photographs of infants who were ordinary members of the public and were taken in a public place was insufficient to rise to the level of the tortious act of invasion of privacy.[27]

Moreover, a child’s consent is especially irrelevant when that child is a public figure.[28] In Heath v. Playboy Enterprises, a woman brought a paternity action against a celebrity talk show host’s adult son.[29] Playboy published a photograph of the woman and her minor child outside of a county courthouse following a hearing.[30] The child’s guardian ad litem then filed a complaint of invasion of privacy.[31] The plaintiff argued that Playboy should not have published the photograph without the child’s consent.[32] The Heath court explained that consent is only relevant when there is an issue regarding the plaintiff’s status as a public figure, the legitimacy of public concern, or the disclosure of private facts.[33] Thus, the court held the child did not have an actionable claim because she was a public figure who had a national following and the photograph was taken in a public place after an event open to the public.[34]

These cases demonstrate the challenges of pleading an actionable claim for the invasion of a child’s privacy before the Internet. With the creation of social media sites such as Facebook in 2004,[35] photographs and personal information of children can now be shared throughout the digital world. Further, children have no control over what their parents post or share about them on social media.[36] The following cases demonstrate how courts have applied the invasion of privacy to children on social media.


A user’s privacy settings on social media, regardless of their age, can severely limit the user’s right of privacy.[37] In Chaney v. Fayette County Public School District, a county school district gave a PowerPoint presentation called “Internet safety.”[38] One of the slides contained a photograph, obtained from Facebook, of the seventeen-year-old plaintiff.[39] The county school district was able to find the photograph because the plaintiff had chosen a semi-private Facebook setting that allowed her Facebook “friends” and “friends of friends” to view her page and pictures.[40] As a minor, this was the most inclusive privacy setting available.[41] Neither the plaintiff nor her parents consented to the county’s use of the photograph.[42] The court explained that “[b]y intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people she did not know (i.e., the friends of her Facebook friends).”[43] Thus, the plaintiff forfeited any reasonable expectation of privacy concerning her Facebook profile.[44]

Further, the court held the plaintiff’s status as a minor did not magnify her right of privacy.[45] Chaney demonstrated that a child can implicitly surrender his or her reasonable expectation of privacy through the privacy settings the child chooses on his or her social media account. However, the case does not address the privacy rights of children when their information and images are posted on the Internet without their expressed or implied consent.

Parents are in complete control of their minor child’s privacy on social media.[46] In Thomas v. Cash, a minor child’s adoptive parents sought a protective order from the child’s biological family because they posted pictures of the minor child on their Facebook accounts.[47] The trial court entered a protective order for five years against each defendant on grounds of harassment, ordering that the defendants were “not to post or display any photograph of the minor child or the child’s parents . . . or make any comments about any of them on any social media or to the petitioners or to any public site.”[48] The trial judge explained that he saw “no valid purpose” to post photographs of the child; the only purpose was harassment.[49] The appellate court reversed and lifted the protective order, explaining that the parents caused the invasion of their child’s privacy.[50] Because the legal parents posted photographs of the minor child on their Facebook accounts and allowed others to do the same, the biological family could permissibly download those photographs and post them on their Facebook accounts.[51]

In Sakala, as in Thomas, the court had to consider the privacy rights of a child who did not consent to photographs of himself being posted on social media.[52] The court determined that the claimed invasion of privacy did not fall into one of the four forms of the invasion of privacy tort from Lawrence and the Restatement (Second) of Torts.[53] The photographs that Sakala posted of the minor child on Facebook were ordinary.[54] They included trips to the White House and the beach, a ride on the subway, and candid ones in a home.[55] Thus, the photographs were not sufficient for a privacy invasion counterclaim because they did not disclose anything about the minor child that was not readily observable by the public whenever the child went out into the world with his parents.[56]


Sakala and Thomas were decided under the traditional reasoning given in Lawrence and Heath that factored a child’s fame into his or her right of privacy. New statutes will need to be created to appropriately address a minor child’s privacy in the digital age. Sidis demonstrated the difficulties of adults to reclaim their privacy rights that were forfeited by others when they were children. Historically, this has only been an issue for minor celebrities. Times have changed. When current minors become adults, an increasing ninety-two percent of them will already have had their personal information and photographs disseminated to unknown places and people.[57]

Both the Sakala and Thomas courts did not consider what the minor child might want regarding his or her digital footprint. Even though the postings of photographs of the child did not constitute harassment in Thomas,[58] those actions should still be considered invasions of the child’s privacy because the child never consented to those photographs being posted on Facebook. Similarly, while the photographs in Sakala may have been ordinary and their depictions readily observed by the public, the decision to post the photographs should ultimately reside with the person who is in the photograph. This will alleviate issues that parents’ oversharing are causing, such as digital kidnapping, online bullying, and even the possibility that one day, adults will want to change their names because of the embarrassing content shared online from their minor years.[59]

Therefore, privacy rights of children in the current age of social media need protection through new statutes and the courts. Historically, the privacy rights of children were only an issue when dealing with child celebrities. Though the Restatement (Second) of Torts provided a remedy, minors’ privacy rights could still be forfeited by their parents. With the creation of the Internet and social media, children’s privacy rights are being infringed in significantly larger numbers. Current case law, as in Sakala, applies an outdated framework ill-adapted to the realities of the digital age. Statutes that address parents’ and other adults’ infringement on minor children’s privacy rights on the Internet could be passed to alleviate safety and legal risks.


California has attempted to protect children’s privacy rights in the digital age, but it is limited in scope.[60] A recent California bill (the Statute) allows minor children to delete their posts and establishes a minor’s right to deletion.[61] The Statute provides a remedy to minors like Chaney who may want to remove photographs and other information they themselves posted on social media. However, it does not give minors a deletion option with respect to what their parents or others post about them.[62]

The main crux of the Statute permits a minor who is a registered user of an Internet Web site, online service, online application, or mobile application (Site or Sites, collectively) “to remove or, if the operator prefers, to request and obtain removal of, content or information posted on the operator’s [Site] . . . by the user.”[63] The Statute also requires a Site to provide notice to registered minors of their right to deletion[64] as well as clear instructions on how to remove content.[65] The first section of the Statute, however, limits liability to Sites that have actual knowledge that a minor is using its Site.[66]

The Statute is also limited because it does not require a Site to delete content that was stored or posted by a third party.[67] Critics have commented that this limitation makes the bill inefficient because the main issue of digital child privacy concerns third parties.[68] Thus, a Site remains in compliance of the Statute even if the content “remains visible because a third party has copied the posting or reposted the content or information remains on the operator’s servers in some form.”[69] These limitations demonstrate that the purpose of the Statute was only to protect minors, who post inappropriate content as a result of their youthful immaturity, from themselves.[70]


While the Statute grants minors the right to deletion of content they post on Sites, the Statute may face certain constitutional constraints. James Lee argues that the Statute is unconstitutional under the dormant Commerce Clause.[71] A statute discriminates against interstate commerce when it provides for differential treatment of in-state and out-of-state economic interests.[72] Because the Statute is not limited to Sites in California, Sites in other states that service California users are forced to follow the Statute, thus violating the Commerce Clause.[73]

In Pike v. Bruce Church, Inc., the Supreme Court used a balancing test that requires state regulation affecting interstate commerce to serve a legitimate local public interest sufficient enough to warrant the burden imposed on interstate commerce.[74] Thus, the Statute must not impose a burden on interstate commerce that is clearly excessive in relation to the putative local benefits derived from the Statute.[75] Lee argues that the Statute will likely serve a legitimate local public interest[76] because California courts recognize that the state has a compelling interest in protecting minors from harm.[77] However, the Statute may still fail the Pike balancing test because the burden on interstate commerce outweighs the local benefits.[78]
Because the Statute implicitly requires Sites hosted on servers outside of California to comply with the Statute,[79] Sites would either have to provide only minors in California with the ability to delete content or to provide that option to minors in all states.[80] Both options are unduly burdensome because of the huge costs to Site owners.[81] Thus, a significant burden would be placed on interstate commerce.

To satisfy the first option, the Statute’s supporters may cite to National Federation of the Blind v. Target Corp., where the court explained that technology allows Sites to geographically locate and thus distinguish among Site users.[82] However, while determining the nation of a Site user is very accurate, determining the city or state is much more difficult.[83] The court in Target also factored into their reasoning the fact that Sites could use a user’s credit card information to determine the user’s state.[84] This line of reasoning does not pertain to the Statute because Sites where minors post personal content usually do not ask for a credit card number.[85]

Because of these difficulties, a Site may decide to provide California’s deletion button to all users. This strategy would subject interstate commerce to inconsistent state regulation.[86] The Supreme Court held in Pike that this notion unduly burdens interstate commerce.[87] Therefore, the Statute does not seem to pass the Pike balancing test.[88]

This argument is also strengthened when examining the alleged local benefit of the Statute. Deletion options already exist for primary Sites such as Facebook and Twitter.[89] Further, a minor would not benefit from the Statute if future employers and colleges could still view the minor’s personal content because the content was reposted by a third party.[90]


One way for California to avoid a constitutional challenge is to encourage Congress to pass a national law that implements similar deletion provisions.[91] This would prevent inconsistent state regulation.[92] Sites would then have to distinguish between users in and outside of the United States,[93] which, as discussed previously, is fairly easy to do.[94]

The United States could also pass legislation similar to the European Union’s “right to be forgotten.” In the EU, minors and adults may request the deletion of content relating to the user posted both personally and by third-parties.[95] Commentators explained that if this concept was limited to minors, then it might be upheld in U.S. courts.[96]

A third approach is to instead focus on educating minors about the digital footprint they create when they upload personal content onto Sites.[97] Instead of a reactionary solution, educating minors would take a preventative approach. California could model their educational program on that of Common Sense Media and how it collaborates with Disney Media to educate minors about safe Internet practices on its Site and the Disney Television Channel.[98]


Many commentators are curious whether the European Union’s “right to be forgotten” can be implemented in the United States.[99] California’s Statute seems to be moving toward the European model, but it could be encroaching on free speech.[100] Because there is no right to privacy in the text of the Constitution, privacy rights are not considered as fundamental as free speech rights.[101] Thus, when the rights of privacy and free speech collide, free speech usually wins.[102]

A potential reason for this difference between the European Union and the United States is that cyber privacy rights are afforded different weight in the United States and the European Union.[103] Unlike the European Union, the United States is a common law country that has over 200 years of free speech jurisprudence.[104] This system entrenches certain American values and concepts, which makes the process of shifting the priority of rights arduous.[105] Meanwhile, the European Union is dominated by civil law Member states, which makes it easier to place a higher emphasis on privacy rights.[106]


Regardless of the potential constitutional hurdles, the Statute is limited in various ways in protecting minors on the Internet. For example, the Statute will unfortunately be unable to assist in the revenge porn arena because of its inability to reach third parties who post content of a user. Luke Fiedler examined the laws that criminalized revenge porn.[107]

He defined revenge porn as the “act of widely disseminating, via the Internet, nude or otherwise explicit photos or videos that were produced and exchanged while two individuals shared an intimate encounter or relationship.”[108] Instead of legislation, Fiedler suggests that revenge porn can be combated by Sites like Google using algorithms to detract users from going onto revenge porn Sites.[109] However, victims of revenge porn are faced with a web of laws, like the Statute, that unintentionally slow efforts for relief.[110]


A recent study showed that of hiring managers who research the social media accounts of candidates, over one-third found content that caused them not to hire the candidate.[111] Additionally, a survey of college admissions officers revealed that schools are finding more and more personal content on Facebook and Google that hurts applicants’ acceptance probabilities.[112] The Statute seems to alleviate this problem by allowing minors to delete content they no longer wish to have on the Internet. However, the Statute does not cover adults who wish to delete content they posted as minors.[113] When Californian eighteen-year-olds are applying to colleges and jobs, they will be out of luck if they did not delete content they uploaded on a site as minors before their eighteenth birthday. Thus, as stated earlier, it seems imperative to teach minors about the potential harmful effects of a digital footprint before it is too late.


Child privacy is in the new era of the Internet. Historically, child privacy only became an issue when it concerned a child celebrity. That is no longer the case. Recent case law shows that courts are attempting to fit the digital issues of modern times into an antiquated system. California’s Statute seems to be a step in the right direction in helping minors remain in control of their digital footprints. However, the Statute may face some challenges and is severely limited. If the Statute unduly burdens interstate commerce by the costs it imposes on out-of-state businesses, then it could be deemed unconstitutional. Further, commentators have mentioned that the Statute is approaching an infringement on free speech by discouraging the re-posting of personal content by third parties. However, the Statute is limited because it does not protect users against third party posts, which affects revenge porn victims. The Statute does not apply to adults, including eighteen-year-olds, that are in the midst of applying to colleges and their first jobs. While the Statute is limited in many aspects, it does provide a small step in the right direction of developing new child privacy laws in the digital age.


.* B.S., United States Military Academy at West Point (2011); J.D. Candidate, University of Florida Levin College of Law (2019). I am grateful to all the individuals who helped with this Note to include my classmates on the Journal of Technology Law & Policy Executive Board and Professor Stacey Steinberg, who initiated my interest in this topic.

1. See Digital Birth: Welcome to the Online World, BUS. WIRE (Oct. 6, 2010, 1:02 PM), 134

2. Complaint at 1, Sakala v. Milunga, No. 8:16-CV-00790-PWG, (D. Md. Mar. 17, 2016).

3. Id. at 2.

4. Sakala v. Milunga, No. PWG-16-790, 2017 WL 2986364, at .*4 (D. Md. July 13, 2017).

5. Complaint, supra note 2, at 4.

6. Id. at 1.

7. Defendant’s Answer to Plaintiff’s Second Amended Complaint at 26, Sakala v. Milunga, No. 8:16-CV-00790-PWG (D. Md. Dec. 8, 2016).

8. Id. at 44–45.

9. Sakala, 2017 WL 2986364, at .*4.

10. See id.

11. Sidis v. F-R Pub. Corp., 113 F.2d 806, 807 (2d Cir. 1940).

12. Id.

13. Id. at 808.

14. Id. at 809.


16. Id.

17. Id.

18. Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 EMORY L.J. 841, 874 n.255 (2017).

19. Id.

20. Lawrence v. A.S. Abell Co., 475 A.2d 448, 453 (Md. 1984).

21. Id. at 449.

22. Id.

23. Id.

24. Id.

25. Id. at 451.

26. Id. at 453.

27. Id.

28. Heath v. Playboy Enters., Inc., 732 F. Supp. 1145, 1150 (S.D. Fla. 1990).

29. Id. at 1146.

30. Id.

31. Id. at 1147.

32. Id. at 1149.

33. Id. at 1150.

34. Id.

35. Nicholas Carlson, At Last—The Full Story of How Facebook Was Founded, BUS. INSIDER (Mar. 5, 2010, 4:10 AM), 2010-3.

36. See Steinberg, supra note 18, at 844.

37. Chaney v. Fayette Cty. Pub. Sch. Dist., 977 F. Supp. 2d 1308, 1316 (N.D. Ga. 2013).

38. Id. at 1312.

39. Id.

40. Id. at 1313.

41. Id.

42. Id.

43. Id. at 1315.

44. Id. at 1316.

45. Id.

46. See Thomas v. Cash, 423 P.3d 670, 676 (Okla. Civ. App. 2016).

47. Id. at 672.

48. Id. at 674.

49. Id.

50. See id. at 676.

51. See id. at 677.

52. See Sakala v. Milunga, No. PWG-16-790, 2017 WL 2986364, at .*4 (D. Md. July 13, 2017).

53. Id.

54. Id.

55. Id.

56. Id.

57. See Digital Birth: Welcome to the Online World, supra note 1.

58. Thomas v. Cash, No. 113642, 2016 WL 8377118, at .*7, (Okla. Civ. App. Aug. 25, 2016).

59. See Steinberg, supra note 18, at 854–55.

60. See CAL. BUS. & PROF. CODE § 22581 (West 2015).

61. See id.

62. See Steinberg, supra note 18, at 844 n.20.

63. CAL. BUS. & PROF. CODE § 22581(a)(1).

64. Id. § 22581(a)(2).

65. Id. § 22581(a)(3).

66. Id. § 22581(a).

67. Id. § 22581(b)(2).

68. Eric Goldman, California’s New ‘Online Eraser’ Law Should Be Erased, FORBES (Sept. 24, 2013, 1:35 PM), online-eraser-law-should-be-erased.

69. CAL. BUS. & PROF. CODE § 22581(d)(1).

70. See Katy Steinmetz, Lucky Kids: California Gives Minors the Right to Delete Things They Put Online, TIME (Sept. 23, 2013), california-gives-minors-the-right-to-delete-things-they-put-online/.

71. James Lee, SB 568: Does California’s Online Eraser Button Protect the Privacy of Minors?, 48 U.C. DAVIS L. REV. 1173, 1177 (2015).

72. Pike v. Bruce Church, Inc., 397 U.S. 137, 141–42 (1970).

73. See Lee, supra note 71, at 1177.

74. Pike, 397 U.S. at 142.

75. Id.

76. Lee, supra note 71, at 1191–92.

77. Id. at 1192.

78. Id. at 1193.

79. See CAL. BUS. & PROF. CODE § 22581 (West 2015).

80. See Goldman, supra note 68.

81. Id.

82. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006).

83. See YUVAL SHAVITT & NOA ZILBERMAN, A STUDY OF GEOLOCATION DATABASES (2010),; The Inside Secrets About IP Addresses and Geolocation, WHATISMYIPADDRESS.COM, (last visited Sept. 4, 2018).

84. Target, 452 F. Supp. 2d at 961–62.

85. See Lee, supra note 71, at 1195–96.

86. Id. at 1197.

87. Healy v. Beer Inst., Inc., 491 U.S. 324, 337 (1989).

88. See Lee, supra note 71, at 1197.

89. See How to Delete a Tweet, TWITTER, deleting-a-tweet (last visited Sept. 4, 2018); How Do I Delete a Photo I’ve Uploaded?, FACEBOOK, (last visited Sept. 4, 2018); How Do I Hide or Delete Posts I’ve Shared from My Page?, FACEBOOK, (last visited Sept. 4, 2018).

90. See Lee, supra note 71, at 1200.

91. Id. at 1203.

92. Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 961 (N.D. Cal. 2006).

93. Id.

94. Id.

95. See Steven C. Bennett, The “Right to be Forgotten”: Reconciling EU and U.S. Perspectives, 30 BERKELEY J. INT’L L. 161, 161–63 (2012).

96. See id. at 166–67.

97. Lee, supra note 71, at 1204.

98. See Get Cybersmart with Phineas and Ferb, COMMON SENSE MEDIA, (last visited Sept. 5, 2018).

99. See Michael J. Kelly & David Satola, The Right to Be Forgotten, 2017 U. ILL. L. REV. 1, 38 (2017).

100. Id. at 44.

101. See id. at 40; Michael C. James, A Comparative Analysis of the Right to Privacy in the United States, Canada and Europe, 29 CONN. J. INT’L L. 257, 269 (2014).

102. Kelly & Satola, supra note 99, at 40.

103. David Meyer, Why the EU’s “Right to Be De-Linked” Should Not Go Global, GIGAOM (Nov. 26, 2014, 7:08 AM), should-not-go-global/.

104. Id.

105. Id.

106. Id.

107. Luke Fiedler, Public Shaming in the Digital Age: Are Criminal Laws the Most Effective Means to Regulate Revenge Porn?, 34 LOY. L.A. ENT. L. REV. 155, 155 (2014).

108. Id.

109. Id. at 185–86.

110. See id. at 191.

111. Thirty-Seven Percent of Companies Use Social Networks to Research Potential Job Candidates, According to New CareerBuilder Survey, CAREER BUILDER (Apr. 18, 2012),

112. Russell Schaffer & Carina Wong, Kaplan Test Prep Survey Finds That College Admissions Officers’ Discovery of Online Material Damaging to Applicants Nearly Triples in a Year, KAPLAN TEST PREP (Oct. 4, 2012), survey-finds-that-college-admissions-officers-discovery-of-online-material-damaging-to- applicants-nearly-triples-in-a-year.

113. Kurtis Alexander & Vivian Ho, New Law Lets Teens Delete Digital Skeletons, S.F. GATE (Sept. 24, 2013, 9:47 AM), digital-skeletons-4837309.php.

Leave a Reply

Your email address will not be published. Required fields are marked *