I l l
DAVID SEHNÄLEK*
Sharenting and Children's Privacy Protection in
International, EU, and Czech Law:
Parents, Stop Sharing! Thank You, Your Children
ABSTRACT: The digitalization of social relations has brought some new and
hitherto unknown phenomena. Real life has been extended, into the world of
cyberspace. This world is often referred to as the virtual world, but in reality,
by its consequences for our lives and the legal sphere, it is no less real than the
physical world.
A significant part of family life has been affected by this phenomenon. Photos,
videos and other information that used to be available only to immediate family
members are now shared publicly on the internet through social networks.
Young children are particularly affected, with parents publicly sharing information
from their private lives. This practice is referred to as sharenting.
As a result of sharenting, children in the Internet environment often effectively
lose their status as subjects and become mere objects. This object is then handled
by the child's closest relatives - parents, i.e. the people who should naturally look
after and defend the child's best interests.
The problem is that parents are not aware of both the legal framework and the
possible factual negative consequences that sharenting can have for a child's life
and childhood.
The key question that I seek to answer in this article is to what extent the current
legalframework can respond to sharenting. The aim is also to assess to what extent
is such sharing information about children legal and where the boundaries of
permissible or justifiable disclosure of information about a child on the Internet
lie. Finally, the question is also how the child affected by sharing can defend him/
herself against its negative consequences.
Sharenting is addressed by the EU, international and national law. As far as
national law is concerned, in my article I focus primarily on Czech civil and
family law. Sharenting concerns the protection of privacy as a fundamental
Associate Professor, Department of International and European Law, Faculty of Law,
Masaryk University, Brno, the Czech Republic, david.sehnalek@law.muni.cz. ORCID:
0000-0001-8763-7570.
https://doi.Org/10.47078/2023.l.lll-132
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human right, but also freedom of expression, which is why the European Convention
and the Convention on the Rights of the Child (international dimension),
the EU Charter of Fundamental Rights (EU dimension) and the Czech Charter
of Fundamental Rights and Freedoms (national constitutional dimension) are
explored as well.
KEYWORDS: sharenting, child's best interest, privacy protection, social networks,
parental responsibility, representation of the c h i l d i n cyberspace
1. Introduction
The digitization a n d "internetization" of social relations has created new p h e n o m ena
a n d challenges w i t h the transfer o r extension of real life into the w o r l d of
cyberspace. This w o r l d is often referred to as the v i r t u a l w o r l d , but i n reality, b y its
nature a n d consequences for o u r lives a n d the legal sphere, it is no less real t h a n
the physical w o r l d i n w h i c h w e live. W e have become accustomed to the fact that
these consequences are not necessarily positive.
A certain specificity of cyberspace is that direct access to it is effectively a n d
often legally forbidden to certain groups of people. These people include, a m o n g
others, the youngest (and also the most vulnerable) of us - c h i l d r e n . H o w e v e r ,
they are r o u t i n e l y a n d u n f o r t u n a t e l y also i n c r e a s i n g l y present i n cyberspace
v i c a r i o u s l y t h r o u g h t h e i r parents. Therefore, c h i l d r e n do not have f u l l c o n t r o l
over h o w they are presented i n cyberspace. They cannot influence the i n f o r m a t i o n
p u b l i s h e d about t h e m o n the Internet, not o n l y i n terms of what they do or say but
also i n terms of photographs or videos of their likeness. T h e i r parents are i n f u l l
control a n d do not seek their children's opinions, a n d i n m a n y cases, given their
y o u n g age, this is not even possible.
Consequently, c h i l d r e n i n the Internet e n v i r o n m e n t often effectively lose
their status as subjects a n d become mere objects. T h i s object is t h e n h a n d l e d b y
the child's closest relatives, that is, the people w h o have the closest ties to t h e m
and w h o s h o u l d n a t u r a l l y look after a n d defend the child's best interests. It m a y
be legitimately asked whether this is i n d e e d the case.
The p h e n o m e n o n about w h i c h I a m w r i t i n g has already a c q u i r e d its o w n
n a m e - p r o f e s s i o n a l literature refers to it as " s h a r e n t i n g " f r o m a c o m b i n a t i o n
of the w o r d s s h a r i n g a n d p a r e n t i n g . It is u n d e r s t o o d as a situation i n w h i c h a
parent shares i n f o r m a t i o n about h i s or her c h i l d , t y p i c a l l y photos or videos. F r o m
S H A R E N T I N G A N D CHILDREN'S PRIVACY PROTECTION IN INTERNATIONAL, E U , A N D C Z E C H LAW 113
the point of v i e w of public l a w / the i n f o r m a t i o n shared t y p i c a l l y belongs to the
category of personal data, and, given the fact that it concerns a c h i l d , even to the
category of sensitive personal data.
The key question that I seek to a n s w e r i n this article i s to what extent
the current legal f r a m e w o r k is able to r e s p o n d to this still relatively n e w social
p h e n o m e n o n . I not o n l y cover extreme examples, but also situations of ordinary,
"everyday" sharenting. The a i m is to assess the extent to w h i c h such s h a r i n g of
i n f o r m a t i o n about c h i l d r e n is legal a n d where the boundaries o f permissible or
justifiable disclosure of i n f o r m a t i o n about a c h i l d on the Internet lie. The ultimate
question is h o w c h i l d r e n affected by s h a r i n g c a n defend themselves against its
negative consequences.
Legislation regulating sharenting is m u l t i l a y e r e d a n d is contained i n E U ,
international, a n d national law. A s far as national l a w is concerned, I focus primarily
o n C z e c h law. Sharenting concerns the protection of p r i v a c y as a f u n d a m e n t a l
h u m a n right, but also f r e e d o m o f expression, w h i c h is w h y the E u r o p e a n C o n vention
a n d the Convention o n the Rights of the C h i l d (international dimension),
the E U C h a r t e r o f F u n d a m e n t a l Rights ( E U dimension), a n d the C z e c h C h a r t e r
of F u n d a m e n t a l Rights a n d F r e e d o m s (national c o n s t i t u t i o n a l dimension) are
relevant. A t the same time, sharenting is a n issue that is regulated by the G D P R
(the E U dimension) a n d the protection of privacy or, more broadly, the protection
of personality rights i n national law, that is, the C z e c h C i v i l Code i n the case of the
Czech Republic. E q u a l l y i m p o r t a n t is the regulation of the relationship between
parents a n d c h i l d r e n b y f a m i l y law, w h i c h defines the extent to w h i c h a parent
can act o n behalf of a c h i l d . This issue is also regulated by the C i v i l Code of C z e c h
law. A s the scope of this article is l i m i t e d , I do not address legal regulation-related
issues, s u c h as t h e issue o f c o n t r a c t u a l relations b e t w e e n i n f o r m a t i o n society
service providers o n the one h a n d a n d parents or c h i l d r e n o n the other.
2. Definition of sharenting
Sharenting i s t y p i c a l l y associated w i t h t h e d i s s e m i n a t i o n o f i n f o r m a t i o n o n
c h i l d r e n t h r o u g h social networks. However, i n f o r m a t i o n about c h i l d r e n c a n also
be shared by parents i n other, more traditional means of data t r a n s m i s s i o n . The
fact that the d i s s e m i n a t i o n of this i n f o r m a t i o n takes place electronically v i a the
Internet is not i n m y o p i n i o n what defines sharenting. However, the Internet a n d
social n e t w o r k s have brought this p h e n o m e n o n to existence; w i t h o u t t h e m , it
could not exist to the present extent.
1 The issue is regulated by GDPR, which has been supplemented and implemented in the
Czech Republic by Act No. 110/2019 Coll., the Act on the Processing of Personal Data (zákon
č. 110/2019 Sb. Zákon o zpracování osobních údajů).
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W h a t defines sharenting as a phenomenon is precisely the fact that i n f o r m a tion
about c h i l d r e n is shared by their parents. The f o r m i n w h i c h the i n f o r m a t i o n
is transmitted is, i n m y o p i n i o n , secondary, or directly irrelevant. I have therefore
deliberately left out the Internet a n d social networks f r o m the definition of sharenting
I use i n this article so that the definition is technologically neutral.
The essence of sharenting involves the public s h a r i n g of i n f o r m a t i o n about
a child. Therefore, it is necessary to distinguish the private sphere f r o m the public
sphere. There are three possible ways of e x a m i n i n g this d i s t i n c t i o n d e p e n d i n g on
whether the d i v i d i n g c r i t e r i o n is (1) territorial, (2) personal, or (3) one that makes
distinctions according to the nature of the i n f o r m a t i o n shared, that is, whether it
is private or p u b l i c .
Territoriality u s u a l l y fails w h e n s h a r i n g . Therefore, this is not a suitable
d i v i d i n g c r i t e r i o n . I have noted above that w h i l e sharenting is b y definition not
tied to the Internet, it de facto i n most cases happens t h r o u g h it. The Internet is
i n this case merely a " t o o l " a n d due to its characteristics, it makes little sense to
distinguish between private a n d public spaces i n the e n v i r o n m e n t of the Internet
- it is u b i q u i t o u s . Rather t h a n a place, it is possible to t a l k about t h e fact that
the i n f o r m a t i o n it contains is only available to certain people. Therefore, a more
appropriate c r i t e r i o n is the personal o n e . 2
Nevertheless, the territorial aspect has some relevance. There is a qualitative
difference i f a parent shares, for example, a photo t a k e n i n a p u b l i c place
(e.g., a picture of a c h i l d o n the p o d i u m after w i n n i n g a race) or at school, f r o m a
situation i n w h i c h a parent shares a photo o f a c h i l d together w i t h , for example,
the child's r o o m . In the latter case, the parent reveals another layer of the child's
p r i v a c y b y s h o w i n g t h e c o n d i t i o n s u n d e r w h i c h t h e c h i l d lives. T h e p h y s i c a l
private w o r l d meets the v i r t u a l public w o r l d .
Definitions of sharenting do not u s u a l l y w o r k w i t h the target group, that is,
w i t h people w h o are the actual or potential recipients of i n f o r m a t i o n about c h i l dren
that has been shared by their parents. Yet, this personal perspective seems
to me the most appropriate for d e f i n i n g sharenting. I n f o r m a t i o n d i s s e m i n a t i o n
usually occurs w i t h i n several circles. First, this s h a r i n g is most intense w i t h i n
2 The limits of this distinction are also highlighted by the case law of the Czech Constitutional
Court and the ECtHR. Although it does not concern sharenting, it is relevant to the
case at hand. See the reasoning of the Czech Constitutional Court in Pi. Constitutional
Court 3/09, in which the Court stated that 'in today's times, when the autonomous fulfilment
of private life and work or leisure activities are closely related, it is not possible to
make a sharp spatial separation of privacy in places used for living from privacy created
in places and environments used for work or business activities or for satisfying one's
own needs or leisure activities, even if the activities take place in areas open to the public,
respectively. Such activities, which are not enclosed, such as business activities, may be
subject to certain restrictions which may constitute a certain interference with the right
to privacy.' The Constitutional Court drew inspiration from the case law of the ECtHR.
See, for example, the ECtHR's reasoning in Niemietz v. Germany (Application no. 13710/88),
Judgement, 16 December 1992.
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the f a m i l y i n the atomic sense, that is, between the partners/parents themselves.
Second, the target group may be a w i d e r family. T h i r d , i n f o r m a t i o n may be shared
not only w i t h the f a m i l y but also w i t h a v a r y i n g l y broadly defined circle of friends.
Fourth, i n f o r m a t i o n may be shared directly w i t h the p u b l i c , that is, people w h o do
not fall into any of the previous categories. A s a rule, the first a n d second variants
of s h a r i n g i n f o r m a t i o n about a c h i l d are not c o n s i d e r e d s h a r e n t i n g i n the true
sense. The t h i r d a n d f o u r t h variants, however, u s u a l l y are.
Regardless of the v a r i a n t d e s c r i b e d above, the c r u c i a l p r o b l e m w i t h the
Internet a n d i n f o r m a t i o n s h a r i n g t h r o u g h social networks is the l i m i t e d ability
to control f u r t h e r d i s s e m i n a t i o n of the i n f o r m a t i o n shared. Thus, the i n f o r m a tion
m a y i n i t i a l l y be s h a r e d by the parent w i t h i n a n a r r o w circle of recipients,
but this circle m a y later be expanded by secondary s h a r i n g by another person to
new, u n i n t e n d e d , a n d u n w a n t e d recipients not o r i g i n a l l y intended by the parent.
This f o r m of s h a r i n g is no longer considered sharenting, but is a secondary consequence
of sharenting.
The t h i r d aspect, w h i c h is based on the nature of the i n f o r m a t i o n , also does
not represent a n o p t i m a l c r i t e r i o n for defining sharenting. In particular, the fact
that i n f o r m a t i o n m a y be p u b l i c l y available (regardless of whether we define it as
public geographically or personally) does not necessarily m e a n that it is p u b l i c
i n f o r m a t i o n ; it m a y still be private.3
Sharenting is understood as a situation i n w h i c h a parent shares i n f o r m a t i o n
about their c h i l d . A c c o r d i n g to C z e c h law, only biological4
or adoptive parent exercise
parental responsibility. Thus, a step-parent, foster parent, spouse, or anyone
else (e.g., a grandparent) to w h o m the c h i l d has b e e n entrusted b y the parent
are not holders of obligations a n d rights a r i s i n g out of parental r e s p o n s i b i l i t y . 5
1
believe that sharenting is not a n issue i n this case, as these people represent t h i r d
parties a n d not the legal representative of the c h i l d .
In terms of time, sharenting is a p h e n o m e n o n that is t y p i c a l of a relationship
between a parent a n d their m i n o r c h i l d . The legal quality of the relationship
between the c h i l d a n d parent changes as soon as the c h i l d acquires f u l l legal
capacity.6
The essence of this change lies i n the fact that the c h i l d is able, not only
de facto but also dejure, to m a k e decisions about their rights a n d obligations a n d
to defend themselves i f others interfere w i t h their rights. The issue of the majority
w i l l be addressed later i n this article. Regarding lower age limits, the first solution
is to l i n k the b e g i n n i n g of life to the m o m e n t of b i r t h . In reality, however, sharenting
c a n occur even earlier - f r o m the m o m e n t of conception. Indeed, parents
3 See Bonova, 2022, p. 178.
4 I use the term "biological parent" here for simplicity. In fact, a parent in this sense may
not only be a biological parent, but also one to whom one of the legal presumptions of
parenthood applies.
5 Kralickova, 2021, p. 102.
6 The exception may be applied to infrequent cases of people with limited legal capacity.
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can a n d frequently do share v i s u a l i n f o r m a t i o n about the fetus.7
The difference
between a situation that concerns the fetus a n d the c h i l d lies i n the fact that the
fetus does not yet exist as a subject of C z e c h l a w u n t i l b i r t h . Legislation does not
provide for or protect the fetus i n relation to sharenting.8
However, this does not
preclude the possibility that c h i l d r e n m a y defends themselves legally against the
disclosure of such i n f o r m a t i o n i n the future.9
Sharenting, i f done to a reasonable extent a n d i f the content of the i n f o r m a tion
is also reasonable, is not necessarily a negative social p h e n o m e n o n . However,
it c a n easily b e c o m e one. Typically, the systematic a n d excessive s h a r i n g of
i n f o r m a t i o n or the s h a r i n g of potentially problematic a n d sensitive i n f o r m a t i o n
that directly interferes w i t h a child's personal rights is problematic. Such a phen
o m e n o n is referred to as oversharenting1 0
a n d its negative impact o n the c h i l d is
obvious.1 1
At first glance, it m a y s e e m that the p r o b l e m of sharenting is a r t i f i c i a l l y
exaggerated. After a l l , it is n o r m a l for parents to be p r o u d of their c h i l d r e n , share
i n f o r m a t i o n about t h e i r c h i l d r e n , a n d show t h e m i n photos or other m e a n s of
t r a n s m i t t i n g i n f o r m a t i o n . N o visible h a r m is done i n such situations. However,
the p r o b l e m c a n be v i e w e d differently f r o m different perspectives. Fortunately,
I do not have personal experience w i t h sharenting, as I grew up at a t i m e w h e n
the Internet was not available to the p u b l i c a n d we d i d not use it i n m y f a m i l y .
However, this was not the case w i t h social n e t w o r k i n g . I ask myself h o w I w o u l d
feel i f someone else shared i n f o r m a t i o n about me. The fact that this other person
was one of m y parents w o u l d be irrelevant to m e at that m o m e n t . N o r is s o c i a l
convention, a n d thus the fact that it is basically c o m m o n o n s o c i a l m e d i a , relevant.
W h a t is relevant is the fact that I a m not (the c h i l d is not) the master of m y
privacy as the l a w presumes. The fact that I do not k n o w or feel it at the t i m e is
also irrelevant. It w i l l or m a y h a p p e n one day, a n d I w i l l feel the consequences of
such a n action.
I also feel it is necessary to stress that s o c i a l c o n v e n t i o n is a d y n a m i c
concept that evolves over time. Something that was " n o r m a l " at a certain time may
seem bizarre decades later. T h i s is i n the best case. In the worst case, because of
shifting social standards, what was once n o r m a l becomes forbidden. A n example
i n v o l v i n g c h i l d r e n is the successful C z e c h f i l m "S tebou m n e baví svět," w h i c h
contains scenes of n a k e d c h i l d r e n bathing. It w o u l d be impossible to film a s i m i l a r
scene today, a n d I personally w o u l d not a l l o w it w i t h m y c h i l d r e n as a parent.
7 That this problem indeed exists is confirmed, for example, by this article Karlik, 2019.
8 See Zuklinova, 2014.
9 Karlik, 2019.
10 Choi and Lewallen, 2018, p. 5.
11 Concerning harm, Cordeiro distinguishes between tangible harm, children's rights, digital
citizenship violations, and intangible harm. See Cordeiro, 2021.
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Sharenting ( i n c l u d i n g oversharenting) h a s not received t h e attention it
deserves i n the literature. This is s u r p r i s i n g given h o w c o m m o n the p h e n o m e n o n
is. It is also s u r p r i s i n g i n v i e w of the consequences that sharenting c a n have o n a
child's psychological development a n d their later personal a n d professional life.
Let us not forget that the d o w n s i d e of the Internet is that its content is eternal.
Despite the existence of the right to be forgotten, the real possibility o f deleting
something once it is o n the Internet is rather theoretical.
There are m a n y practical examples o f sharenting. It c a n take the f o r m of
sharing photos or videos of a c h i l d , or it c a n be a situation i n w h i c h f u n n y stories
f r o m a child's life, o r a child's m i s s p o k e n w o r d s , h u m o r o u s catchphrases, or
accidents are shared.
Some parents often do not share a n y t h i n g of their o w n private lives o n their
social network profiles. However, they systematically p u b l i s h details of their child's
life, as i f the child's p r i v a c y is s o m e t h i n g that does not deserve protection.
A s a r u l e , s h a r e n t i n g is not p e r f o r m e d for profit. Nevertheless, cases i n
w h i c h the motive for sharenting is financial g a i n are no exception. I n a n example
of such a situation, i n w h i c h a c h i l d was systematically exploited e c o n o m i c a l l y o n
the Internet, is the p a i r M i s h a a n d Methadone. Two siblings, one aged nine a n d
the other aged twenty-two, b e c a m e famous YouTubers w i t h the knowledge a n d
support of their parents.1 2
T h e i r fame crossed the borders of the C z e c h Republic,
as a result of w h i c h their w o r k i n c l u d e d b o t h C z e c h a n d E n g l i s h p r o d u c t i o n . They
became famous m a i n l y because they p r o d u c e d v e r y bizarre songs, often containing
vulgarity, where not only the lyrics were often "crazy" but also the way i n w h i c h
they were p e r f o r m e d . In their production, they also revealed a part of their private
life - the household i n w h i c h they lived. T h e m a i n p e r f o r m e r was the younger of
the brothers, the older one created a n d directed the content. T h e extent to w h i c h
the nine-year-old M i s h a was able to assess the implications that his actions might
have o n h i s future life a n d professional career is h i g h l y questionable. However, at
his age, he was undoubtedly already able to read, so he could have read the hateful
comments o n the Internet f r o m users w h o f o u n d his w o r k too u n c o n v e n t i o n a l . 1 3
A n example of a s i m i l a r situation i n w h i c h the child's activity is organized
by the parents a n d is most likely also for profit, but i n w h i c h none of the negative
signs of sharenting appear, is the YouTube c h a n n e l of K a r o l i n a Protsenko, whose
v i o l i n p e r f o r m a n c e s are broadcast w i t h o u t r e v e a l i n g t h e sphere o f h e r h o m e
or a n y t h i n g that is not related to h e r m u s i c a l p e r f o r m a n c e s . 1 4
I n this case, t h e
12 See Mishovy šílenosti [Online]. Available at: https://cs.wikipedia.org/wiki/
Mishovy_š°/oC3%ADlenosti (Accessed: 8 June 2022).
13 Misha z Kuřimi je youtuberským fenoménem. Jeho videa sledují miliony lidí [Online].
Available at: https://www.impuls.cz/regiony/jihomoravsky-kraj/michal-florian-kurim-
youtuber-metadon-misha-mishovy-silenosti.A161105_080205_imp-jihomoravsky_kov/tisk
(Accessed: 8 June 2022).
14 Karolina Protsenko Violin [Online]. Available at: https://www.youtube.eom/c/
KarolinaProtsenkoViolin. (Accessed: 8 June 2022).
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Internet serves as a m e d i u m s i m i l a r to T V o r radio. However, t h e same c a n n o
longer be said o f her other videos o n another YouTube c h a n n e l that she shares
w i t h a f r i e n d . 1 5
The above e x a m p l e s illustrate that s h a r e n t i n g i s a diverse practice. I
w o u l d like to stress that the issue of sharenting cannot be reduced to the Internet
alone. E x p o s i n g a child's p r i v a c y to other m u l t i m e d i a m a y have the same negative
consequences. Therefore, we c a n talk about sharenting i n n a r r o w or broad
senses. P r i m e examples of the broader concept are reality television shows such
as "Výměna manželek" (Wife Swap), w h i c h a l l o w the public to see into the home a n d
f a m i l y relationships o f a c h i l d w h o is a passive participant i n such a p r o g r a m . 1 6
F r o m the child's point of view, the voluntary a n d conscious involvement of parents
i n such a n activity cannot be considered reasonable. The parents' a i m is profit or
to solve their private problems. The child's interests a n d benefits are completely
secondary.1 7
A n o t h e r example might be the " m o d e r n " services offered to parents
by kindergartens that a l l o w parents to monitor online what c h i l d r e n are d o i n g i n
the nursery. Strangers c a n thus gain access not only to the child's image a n d video
data (with the t r i v i a l possibility of saving it) but also to i n f o r m a t i o n about h o w the
c h i l d reacts w i t h i n the collective.
If we systematize this phenomenon, the following variants of sharenting are
typical: 1) Direct sharenting u n d e r the identity of the parent. 2) Direct sharenting
is i m p l e m e n t e d by the parent u n d e r the identity of the c h i l d . The c h i l d therefore
has no access to his profile a n d the i n f o r m a t i o n disseminated, a n d the parent acts
essentially as his manager. 3) Indirect sharenting i n w h i c h parents actively create
the conditions for the c h i l d to share i n f o r m a t i o n about themselves a n d actively
collaborate w i t h the c h i l d o n this sharing. 4) Indirect s h a r i n g i n w h i c h the parent
does not i n t e n d to disseminate i n f o r m a t i o n about the c h i l d but creates conditions
under w h i c h this de facto occurs.
Sharenting does not apply, however, i f the c h i l d shares t h e i n f o r m a t i o n
without the parents' knowledge, even t h o u g h he o r she is not yet contractually
entitled to use the relevant social network, nor is it possible because the c h i l d may
not yet have the necessary degree of legal capacity under C z e c h law.
15 Barvina Show [Online]. Available at: https://www.youtube.eom/c/BarvinaShow (Accessed:
8 June 2022).
16 In this show, two families participate in each episode for a fee of C Z K 100,000 (app. E U R
4,200). The wives of the two families are exchanged for ten days. The camera documents
their cohabitation in the new environment. At the end of the show, the performing couples
confront each other and exchange their views. Výměna manželek [Online]. Available at:
https://cs.wikipedia.org/wiki/Vymena_manzelek (Accessed: 8 June 2022).
17 The child may benefit from the correction of a pathological condition in their family, but
such a gain is speculative and unlikely, the price paid for this hypothetical benefit in the
area of privacy is too high, and the help can be implemented through traditional counseling
methods.
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There is no difference i n principle b e t w e e n the first a n d second options.1 8
However, the first option, i f established appropriately, m a y lead to less interference
w i t h a child's personal rights.1 9
This assumes that the parent is restrained a n d
shares the data, for example, i n such a way that it is not possible to trivially l i n k the
child's n a m e to the shared image a n d s o u n d material. In the latter case, the c h i l d
is identified a n d relatively easy to trace. T h e t h i r d option m a y be legally different
f r o m previous options. T h e c h i l d participates; therefore, it is clear that he or she
is aware of the situation a n d provides consent. T h i s situation is further discussed
later i n the article, as the factor of the child's i n f o r m e d consent (in relation to his
age) is legally significant. T h e f o u r t h option is just as dangerous as the first two.
This c a n be demonstrated b y the example of the aforementioned W i f e Swap. In
the case of this p r o g r a m (which, incidentally, is available online), c h i l d r e n are not
the p r i m a r y c o n c e r n , but they are part of the p r o g r a m .
3. Aspects of national sub-constitutional regulation - privacy
protection, parental responsibility, and representation of the child
Two m a i n areas of regulation i n c i v i l law address the issue of sharing. T h e first is
the protection of personality, w h i c h includes the protection of likeness and privacy.
C z e c h l a w provides for Sections 81 et seq. of the C i v i l C o d e . 2 0
T h e addressees of
this regulation are a l l people, regardless of their age. Therefore, the protection of
image a n d privacy is also granted to c h i l d r e n .
It is essential that the protection o f i m a g e a n d p r i v a c y be c o n c e p t u a l l y
based o n the fact that a n y interference, such as i n the f o r m of the dissemination
18 These are not the same: it always depends on the contractual conditions of the service the
parent uses. The first option usually corresponds to the expectations of the operators of
these services - the profile belongs to the person who is presented through it. The second
case, from this point of view, may represent a breach of contractual terms.
19 This option can be practical in situations in which the child him or herself has the intention
to be active on social networks for profit or for artistic reasons. In this way, the parent has
the advantage of being able to control and filter what the child shares. At the same time,
this option is in line with the contractual terms of social network providers, as the profile
belongs to the parent. See Heitner, 2018.
20 The protection of privacy is ensured in Czech private law by means of the general clause
of protection of personality rights and the specific provisions of the Civil Code. Key provisions
are contained in Section 81 of the Civil Code. This provision serves as a general
clause according to which 'the personality of a person, including all his natural rights, is
protected. Everyone is obliged to respect a person's free decision to live according to his
own.' This general provision is followed in the same clause by a demonstrative enumeration
of human values, according to which 'the life and dignity of the human being, his
health and right to live in a favorable environment, his dignity, honor, privacy and his
expressions of his personal nature shall, in particular, enjoy protection.' Human privacy
is specified among these values in that a violation of any other value that is protected by
the cited provision will also result in an invasion of privacy. See Ondfejova, 2016, p. 199.
120 C E N T R A L E U R O P E A N JOURNAL OF COMPARATIVE LAW | V O L U M E I V 2023 1
of a person's image or interference w i t h their privacy by m a k i n g a n audio or v i s u a l
recording o f t h e m , w h i c h is subsequently disseminated, presupposes either the
existence of the consent of the person concerned (that is, the person disseminates
the i n f o r m a t i o n h i m s e l f or herself, or a t h i r d party does so w i t h his or her consent)
or justification based o n a statutory license.
As previously discussed, the essence o f sharenting is the d i s s e m i n a t i o n of
i n f o r m a t i o n about a c h i l d . T h i s i n f o r m a t i o n m a y include b o t h the child's image
and other i n f o r m a t i o n that concerns their privacy. T h e legislation i n t h e C i v i l
Code reflects the reality a n d fact that c h i l d r e n are o n l y capable of m a k i n g l i m i t e d
decisions about their o w n affairs. U n t i l a certain age, c h i l d r e n are defacto unable
to act o n their o w n a n d share i n f o r m a t i o n about t h e i r privacy. S i m i l a r l y , they
are not able to give consent envisaged b y t h e legislation protecting image a n d
p r i v a c y . 2 1
The answer to the question of w h o c a n act a n d u n d e r what conditions, a n d
if necessary, grant consent, is given b y the second relevant area o f regulation.
This area is the regulation of the relationship between parents a n d c h i l d r e n under
C z e c h law, c o n t a i n e d i n Sections 855 et seq. o f the C i v i l Code. T h e p r o v i s i o n of
Section 858 of the C i v i l Code is particularly c r u c i a l , as it regulates parental responsibility
as follows:
Parental responsibility includes rights a n d duties o f parents consisting
i n c a r i n g for the c h i l d , i n c l u d i n g , without l i m i t a t i o n , care for his
health, his physical, emotional, intellectual a n d m o r a l development,
the protection o f the c h i l d , m a i n t a i n i n g p e r s o n a l contact w i t h the
child, e n s u r i n g his u p b r i n g i n g a n d education, d e t e r m i n i n g the place
of his residence, representing h i m a n d a d m i n i s t e r i n g his assets a n d
liabilities; it is created u p o n the child's b i r t h a n d extinguished u p o n
the c h i l d a c q u i r i n g f u l l legal capacity. T h e d u r a t i o n a n d extent o f
parental responsibility m a y only be changed by a court.
A n i m p o r t a n t fact follows f r o m this regulation. R e g a r d i n g sharenting, i n most
cases, t h e parent does n o t need t h e child's consent u n d e r C z e c h law. Parents
disseminate i n f o r m a t i o n about the c h i l d i n their capacity as 'representatives of
the c h i l d ; ' therefore, consent to such actions is already given by law, n a m e l y the
above-quoted Section 858 of the C i v i l Code. However, this does not lead to the conclusion
that sharenting is permissible, w h i c h w o u l d be a n oversimplification.
F r o m the perspective of sharenting, the quality of the relationship between
parents a n d c h i l d r e n , as p r o v i d e d for i n t h e C i v i l Code, is o f p a r t i c u l a r i m p o r tance.
T h i s legislation has h i s t o r i c a l l y evolved to place i n c r e a s i n g emphasis o n
21 In the Czech legal system, children acquires legal capacity gradually, at the latest when
they reach the age of 18.
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the legal status, benefits, a n d interests of the c h i l d . T h i s development has been
completed since the adoption of the current C i v i l Code, w h i c h c a m e into force i n
2014. In defining the role of parents i n the exercise of parental responsibility, the
current C z e c h legislation emphasizes that they s h o u l d care for the c h i l d , w h i c h
means, inter alia, t a k i n g care of the child's health, e m o t i o n a l , intellectual, a n d
m o r a l development, a n d protecting the c h i l d . 2 2
The use of the t e r m "care" affects the quality of the relationship a n d suggests
that the parent does not have the p o s i t i o n o f a n absolutist r u l e r over the
c h i l d . 2 3
O n the contrary, the w o r d i n g o f the l a w m a k e s it clear that rights a n d
duties are reciprocal and, above a l l , that 'the purpose of duties a n d rights towards
the c h i l d is to ensure the m o r a l a n d material well-being of the child.'2 4
These p r e m ises
materialize i n the legislation i n the p r o v i s i o n of Section 875(1), according to
w h i c h 'Parents exercise parental responsibility i n the best interests of the child.' I
believe that this is the area i n w h i c h parents most frequently m a k e mistakes w h e n
sharing i n f o r m a t i o n about their c h i l d r e n o n the Internet. T h e y fail to understand
the quality of their relationship w i t h the c h i l d a n d the fact that the c h i l d is not
an object, not their property, a n d therefore cannot be arranged, photographed,
and shared p u b l i c l y i n the same w a y that they photograph a n d share lunches i n
restaurants, a n e w car, or snapshots f r o m a n exotic holiday.
The C i v i l Code also provides that, to the extent that the c h i l d is not c o m petent,
parents represent the c h i l d either j o i n t l y or separately.2 5
Therefore, t h e
consent to a t h i r d p a r t y (typically the p r o v i d e r of the relevant s o c i a l n e t w o r k
service) w i t h the i n v a s i o n o f p r i v a c y p r o v i d e d for i n the a b o v e - m e n t i o n e d legislation
is not g i v e n b y the c h i l d but b y the parent (or b o t h o f them) parents
u n t i l the c h i l d acquires the capacity to act i n d e p e n d e n t l y . E v e n i n the case of
sharenting, there is no a priori conflict between the interests of the c h i l d a n d the
parent. It w o u l d therefore be a b s u r d to suggest that it is necessary for the court
to appoint a g u a r d i a n for the c h i l d that has b e e n potentially or a c t u a l l y affected
by s h a r e n t i n g . 2 6
W h e n c o n s i d e r i n g w h e t h e r to disclose i n f o r m a t i o n about the
c h i l d a n d w h e t h e r to grant consent to t h i r d parties to share that i n f o r m a t i o n ,
the parent is b o u n d by the above considerations, w h i c h are i n the best interests
of the c h i l d . I emphasize that the mere p o s t i n g of i n f o r m a t i o n about a c h i l d on
social m e d i a indicates that the parent has consented on b e h a l f of the c h i l d to the
f u r t h e r use o f the child's i n f o r m a t i o n by a t h i r d party. I n fact, the parent has
given consent as part of the contract they have entered into to use the service i n
the first place.
22 See Sec. 858 of the Civil Code.
23 Neither parent has the status of paterfamilias anymore, with a very broad, even unlimited
patriapotestas.
24 See Sec. 855(2) of the Civil Code.
25 Sec. 892 of the Civil Code.
26 See Sec. 892(3) of the Civil Code.
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To s u m m a r i z e , the regulations c o n t a i n e d i n the C i v i l Code i m p l y that a
parent c a n decide that c e r t a i n i n f o r m a t i o n about their c h i l d , for example, photographs
of the c h i l d or a video of the c h i l d , c a n be shared publicly. However, the
l i m i t a t i o n here is the best interest of the c h i l d . A parent m a y o n l y share i n f o r m a tion
consistent w i t h the child's interests.2 7
1 question whether situations exist i n
w h i c h s h a r i n g i n f o r m a t i o n about a c h i l d o n the Internet is i n accordance w i t h
the child's interests. C l a i r e Bessant provides a n a n s w e r to this question i n her
article.2 8
She lists a n u m b e r of benefits, w h i c h I w o u l d personally divide into two
groups. The first category includes those w h o directly benefit the c h i l d . Second,
I w o u l d include benefits for the parents, w h i c h also i n d i r e c t l y benefit the c h i l d .
The first group includes motivating c h i l d r e n by broadcasting their achievements;
sharenting c a n help c h i l d r e n develop positive n e t w o r k s of f a m i l y a n d friends
and l e a r n about themselves.2 9
Sharenting thus allows parents to b u i l d a positive
social m e d i a image for c h i l d r e n a n d counteract negative behaviors they might
themselves engage i n as teenagers.
The second group includes avoiding isolation; o b t a i n i n g emotional, practical,
a n d social s u p p o r t ; 3 0
a n d s h a r i n g p a r e n t i n g advice. S h a r e n t i n g enables
parents to enact a n d validate their parenting style.3 1
The intensity of sharenting also matters. "Moderate" sharenting w i l l not be
problematic. This refers to situations i n w h i c h s h a r i n g i n f o r m a t i o n about a c h i l d
is neutral, m e a n i n g that it does not h a r m the c h i l d i n any way. This w o u l d include,
for example, the s h a r i n g of shared f a m i l y photos w i t h m i n i m a l i n f o r m a t i o n a l
value about the c h i l d w i t h i n a l i m i t e d circle of friends or s h a r i n g a photo f r o m
school reporting some success the c h i l d has achieved. Here too, however, restraint
and caution are appropriate, as the p r o b l e m is time. Something that was standard
at one time m a y be laughable at another - we c a n t h i n k here of the proliferation
of photographs f r o m the 1980s. H a i r or dress styles f r o m this era look b i z a r r e
nowadays a n d are often the subject of ridicule o n social m e d i a .
Even i n situations i n w h i c h the consequences of sharenting are harmless or
even beneficial, it is necessary to respect the child's o p i n i o n w i t h i n the scope of
Czech l a w i f they are already capable of f o r m u l a t i n g a n d expressing it reasonably.
The C z e c h C i v i l Code provides that
before m a k i n g a d e c i s i o n that affects the interests of the c h i l d ,
parents s h a l l i n f o r m the c h i l d of e v e r y t h i n g that is necessary for the
c h i l d to f o r m his o w n o p i n i o n o n a given matter a n d c o m m u n i c a t e it
to the parents; this does not apply i f the c h i l d is unable to properly
27 See Sec. 875 of the Civil Code.
28 Bessant, 2018.
29 Ibidem.
30 Ibidem.
31 Ibidem.
S H A R E N T I N G A N D CHILDREN'S PRIVACY PROTECTION IN INTERNATIONAL, E U , A N D C Z E C H LAW 123
receive the message, or f o r m his o w n o p i n i o n or c o m m u n i c a t e it to
his parents. Parents s h a l l pay due attention to the child's o p i n i o n and
take the child's o p i n i o n into account w h e n m a k i n g a decision.3 2
It is c r u c i a l to determine the age at w h i c h the obligation to consult the c h i l d arises,
though the l a w does not explicitly set such a n age. The determination of a specific
age w i l l be i n d i v i d u a l a n d w i l l always depend o n the m a t u r i t y of the i n d i v i d u a l
child. In any event, the age l i m i t of thirteen years, at w h i c h m a n y social networks
allow c h i l d r e n to engage, is too h i g h , as c h i l d r e n become aware of the existence
of social networks m u c h earlier. Therefore, the age of eight or nine seems more
realistic f r o m this point of view. Parents s h o u l d obtain the child's consent w i t h
skepticism. A s the M i s h a case mentioned i n the Introduction demonstrates, c h i l dren
at y o u n g ages m a y not be able to f u l l y appreciate the consequences of their
actions i n the future. Therefore, refusal to share i n f o r m a t i o n should be respected
and consent s h o u l d be subjected to critical evaluation.
In the previous paragraph, I discussed the child's consent i m p l i e d by the
exercise of parental responsibility. It is necessary to distinguish f r o m this consent:
(1) the consent given to t h i r d parties (typically social network operators), o n the
basis of w h i c h these parties may, i n private law, interfere w i t h the child's privacy,
and (2) the consent p r o v i d e d for by E U public law, contained i n the G D P R , o n the
basis of w h i c h personal data m a y be processed.
I w i l l start w i t h the latter, w h i c h is more systematic a n d the interpretation
of w h i c h w i l l be clearer. The specific legislation o n this issue is not contained i n
the G D P R but i n the n a t i o n a l i m p l e m e n t i n g legislation. In the C z e c h R e p u b l i c ,
Act N o . 110/2019 C o l l . A c t o n personal data processing provides i n Section 7 that
A c h i l d s h a l l enjoy capacity to grant consent to personal data processing i n relation
to an offer of i n f o r m a t i o n society services addressed directly to the c h i l d f r o m
fifteen years of age.' Thus, public consent is clearly established.
The situation is more c o m p l i c a t e d i n the case of the first option because
there is no explicit regulation. U n d e r C z e c h law, a person acquires legal capacity
gradually. However, I a m c o n v i n c e d that A c t N o . 110/2019 C o l l . A c t o n p e r s o n a l
data processing c a n be used here a n d consider the age of fifteen years to be a
general threshold i n a broader sense at w h i c h parents should not disclose a n y t h i n g
that m a y interfere w i t h their child's privacy without the child's consent. However,
i n practice, parents should also respect the w i l l s of younger c h i l d r e n . D e p e n d i n g
on the m e n t a l a n d physical development of the c h i l d , this age l i m i t m a y be higher
or lower i n i n d i v i d u a l cases.
Parents' views o n s h a r i n g i n f o r m a t i o n about their c h i l d r e n c a n v a r y considerably.
The C i v i l Code presumes that parents exercise responsibility i n m u t u a l
32 See Sec. 875(2) of the Civil Code.
124 C E N T R A L E U R O P E A N JOURNAL OF COMPARATIVE LAW | V O L U M E I V 2023 1
a c c o r d . 3 3
I n C z e c h law, t h e positions o f the father a n d m o t h e r are comparable;
neither is preferred. In the absence of an agreement between the two, the interests
of the c h i l d s h o u l d be given priority. Unless there is a clear a n d c o m p e l l i n g reason
for s h a r i n g i n f o r m a t i o n , i n m y o p i n i o n , a rather restrictive a p p r o a c h s h o u l d
prevail i n the event of a difference i n o p i n i o n between parents.
I have stated that c h i l d r e n are the subject o f privacy law. Parents c a n deal
w i t h their privacy but are l i m i t e d by law i n this p o s s i b i l i t y However, m a n y parents
do not consider the consequences of their actions on the Internet. They are clearly
unaware of their role as the child's legal representative a n d act for themselves. It
is not u n c o m m o n for a parent to set up a profile o n social m e d i a o n w h i c h a l l of
the posts are about their c h i l d r e n , w i t h the parent not even a p p e a r i n g i n posts.
This m a y be because the parent does not want to disrupt the parent's o w n privacy
because they value it, or are uncomfortable w i t h it, or out of simple m o d e s t y These
are understandable a n d relevant reasons. However, the paradox is that the parent
i n question strictly protects their o w n p r i v a c y but does so at the expense of the
immediate f a m i l y m e m b e r , the c h i l d , w h o often has no w a y o f defending h i m or
herself. In d o i n g so, the parent receives the benefits of j o i n i n g the social network
i n question but pays for it not w i t h his or her o w n data but w i t h the child's.
4. H u m a n rights dimension - protection of privacy, freedom of
expression, and the best interests of the child
The legislation contained i n the C i v i l Code must be interpreted a n d applied i n a
broader context. The h u m a n rights standard influences its value a n d also l i m i t s it.
The relevant factors were 1. protection o f privacy, 2. f r e e d o m of expression, a n d
3. the rights of the c h i l d , p a r t i c u l a r l y their best interests.
The protection o f p r i v a c y is e n s u r e d i n C z e c h constitutional l a w p r i m a r ily
i n A r t i c l e 10 o f the C h a r t e r o f F u n d a m e n t a l Rights a n d F r e e d o m s , w h i c h
states that
1) E v e r y b o d y i s entitled to protection o f his o r her h u m a n dignity,
p e r s o n a l integrity, good reputation, a n d his or her n a m e . 2) Everybody
is entitled to protection against u n a u t h o r i z e d interference i n
his or her personal a n d f a m i l y life. 3) E v e r y b o d y is entitled to protection
against u n a u t h o r i z e d gathering, p u b l i c a t i o n or other misuse of
his or her personal data.
Similarly, the E u r o p e a n Convention i n A r t i c l e 8 provides for the right to respect
private a n d f a m i l y life, a n d the E U C h a r t e r o f F u n d a m e n t a l Rights i n A r t i c l e 7
33 Sec. 876(2) of the Civil Code.
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provides for the same i n matters f a l l i n g w i t h i n the scope of E U law. B e y o n d the
protection of p r i v a c y the E U Charter provides protection for personal data.
In the case of sharenting, parents m a y be entitled to the right to f r e e d o m of
expression guaranteed by A r t i c l e 11 of the E U Charter, A r t i c l e 17 of the C h a r t e r of
F u n d a m e n t a l Rights a n d Freedoms, a n d A r t i c l e 10 of the E u r o p e a n Convention.
However, this right is not absolute a n d m a y be l i m i t e d b o t h o n g r o u n d s relating
to expression as such a n d o n grounds of conflict w i t h other rights that take
precedence i n the value balance. In the case of sharenting, conflict w i t h the child's
right to p r i v a c y is obvious.
F r o m the perspective o f the right to f r e e d o m o f expression, sharenting
could be p e r m i s s i b l e i f it falls w i t h i n the concept of c i t i z e n j o u r n a l i s m . W i t h i n
the f r a m e w o r k of f r e e d o m of expression, protection is granted to a l l persons w h o
are active i n the field of j o u r n a l i s m (journalistic exception). J o u r n a l i s m is broadly
u n d e r s t o o d i n t h e case l a w of the C J E U . 3 4
It is l i k e l y that C z e c h courts w o u l d
respect the o p i n i o n of the C J E U w h e n interpreting the C h a r t e r of F u n d a m e n t a l
Rights a n d Freedoms, even i f it were a n issue f a l l i n g outside the f r a m e w o r k of
E U l a w . 3 5
Nevertheless, i n m y o p i n i o n , journalistic exceptions are inapplicable i n
most cases of sharenting. I n f o r m a t i o n about a c h i l d is t y p i c a l l y not i n the nature
of journalistic material or i n f o r m a t i o n that w o u l d previously have been p u b l i s h e d
elsewhere. However, I c a n i m a g i n e that this exception c o u l d be testified by a t h i r d
p a r t y w h o f u r t h e r disseminates i n f o r m a t i o n about a c h i l d that was p r e v i o u s l y
shared by that child's parent.
Therefore, i n practice, the right to f r e e d o m of expression clashes w i t h the
right to privacy. T h e c h i l d is the addressee of this p r o v i s i o n a n d s h o u l d therefore
be protected f r o m sharenting, since the very nature of sharenting is that it reveals
something that is a n d should be private. However, the matter is more complicated.
Earlier i n this article, i n a n a l y z i n g the sub-constitutional p r o v i s i o n , I described
the role parents play w i t h respect to the c h i l d i n the exercise of parental responsibility.
U n s u r p r i s i n g l y , the m e c h a n i s m is s i m i l a r w h e n it comes to protecting
children's p r i v a c y at the h u m a n rights level. For example, the U K Court of A p p e a l ,
i n interpreting the E u r o p e a n C o n v e n t i o n i n the Weller case,3 6
concluded that
it is parents w h o u s u a l l y exercise this d e c i s i o n - m a k i n g f o r y o u n g
c h i l d r e n . Thus, i f parents choose to b r i n g a y o u n g c h i l d onto the red
carpet at a premiere o r awards night, it w o u l d be difficult to see h o w
the c h i l d w o u l d have a reasonable expectation of privacy or A r t i c l e
8 w o u l d be engaged. I n such circumstances, the parents have made
a choice about the child's f a m i l y life a n d the types of interactions
34 See case C-73/07 Satamedia Oy.
35 See Sehnalek, 2021, p. 276.
36 Weller v Associated Newspapers [2015] EWCA Civ 1176.
126 C E N T R A L E U R O P E A N JOURNAL OF COMPARATIVE LAW | V O L U M E I V 2023 1
that it w i l l involve. A child's reasonable expectation of p r i v a c y must
be seen i n the light of the w a y i n w h i c h his f a m i l y life is conducted.
"Professor Bessant refers to this decision as" a s t r i k i n g example of
the judiciary's acceptance that parents a r e entitled to decide what
happens to their children's i n f o r m a t i o n (especially but not necessarily
w h e n they are young).3 7
The C z e c h national legislation described above f u l l y corresponds to this concept.
If we consider that, i n t h e case o f sharenting, c h i l d r e n need protection f r o m
their o w n parents, t h e n we c a n unfortunately conclude that i n light of the above
decision, the provisions protecting children's p r i v a c y w i l l not i n themselves be of
m u c h help to c h i l d r e n i n defending themselves. However, that conclusion is not
sufficient, and, i n fact, I do not find it satisfactory.
At the h u m a n rights level, c h i l d r e n are further protected by the Convention
on the Rights of the C h i l d , w h i c h enshrines the p r i n c i p l e of the best interests of
children i n A r t i c l e 3.3 8
A c c o r d i n g to this Convention, 'the best interests of the c h i l d
shall be a p r i m a r y consideration.' This c a n be understood i n several ways. First,
children's best interests are a substantive r i g h t , 3 9
w h i c h stands o n its o w n alongside
the aforementioned rights to privacy a n d freedom of expression. A n y conflicts
between these rights w o u l d have to be resolved by b a l a n c i n g t h e m against each
other u s i n g the p r i n c i p l e of proportionality.4 0
However, this is t y p i c a l l y not necessary i n t h e case o f s h a r e n t i n g . T h e
child's best interests is also 'a f u n d a m e n t a l , interpretative legal p r i n c i p l e : If a
legal p r o v i s i o n is open to more t h a n one interpretation, the interpretation w h i c h
most effectively serves the child's best interests s h o u l d be chosen.'4 1
Therefore,
I consider that the best interests of the c h i l d must already be considered i n the
interpretation of the other f u n d a m e n t a l rights concerned, regardless of whether
the c h i l d or the parent is the direct addressee of these provisions. This interpretation
occurs before there is a conflict w i t h the best interests o f the c h i l d as a
substantive right.
I a m therefore of the o p i n i o n that w h e n interpreted correctly, the needs of
the c h i l d s h o u l d be directly considered. T h i s means, therefore, that a parent, i n
representing a child i n matters relating to the protection of the child's privacy, must
have regard for the child's interests, a n d those interests must take precedence over
37 Bessant, 2018.
38 In E U law, this principle is enshrined in Art. 24 of the E U Charter, but the Czech Charter
lacks an equivalent.
39 General comment No. 14 (2013) on the right of the child to have his or her best interests
taken as a primary consideration (Art. 3 para. 1), p. 4 [Online]. Available at: https://www2.
ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf (Accessed: 21 August 2022).
40 For a more in-depth analysis of the application of the proportionality principle, including
an assessment of the legal situation in the Czech Republic, see Hofschneiderova, 2017.
41 Ibid.
S H A R E N T I N G A N D CHILDREN'S PRIVACY PROTECTION IN INTERNATIONAL, E U , A N D C Z E C H LAW 127
any c o n f l i c t i n g interests of the parent or t h i r d parties.4 2
The degree of f r e e d o m
that parents enjoy under privacy provisions is therefore different w h e n they make
decisions for themselves t h a n w h e n they make decisions for c h i l d r e n . The i m p l i c a tions
for the possibilities of s h a r i n g i n f o r m a t i o n o n the Internet are obvious. The
scope of i n f o r m a t i o n that parents are entitled to share about themselves is not
the same as the scope of i n f o r m a t i o n that they are entitled to share about their
c h i l d r e n .
It follows f r o m the above that a parent is, after a l l , sometimes entitled to
invade a child's privacy by s h a r i n g i n f o r m a t i o n . A s noted above, i n certain cases,
sharenting c a n be beneficial to the c h i l d , either directly or indirectly. However,
more often, it w i l l have a neutral or even h a r m f u l impact. In fact, e m p i r i c a l data
suggest that the top ten reasons for using social n e t w o r k i n g sites include: 1. to stay
in touch w i t h friends (42%), 2. to stay up-to-date w i t h news a n d current events (41%),
3. to fill spare time (39%), 4. to find f u n n y or entertaining content (37%), 5. general
n e t w o r k i n g w i t h other people (34%), 6. because friends were already o n such sites
(33%), 7. to share photos or videos w i t h others (32%); 8. to share opinions (30%); 9.
to research new products to buy (29%), a n d 10. meeting new people (27%).4 3
It is also
important to consider that social n e t w o r k i n g use is t y p i c a l l y u n p a i d . It is not free,
however, as the 'payment' is made w i t h the user's o w n data.4 4
This is h o w networks
are built. Thus, sharenting allows parents to 'pay' w i t h someone else's data.
A n overview of the i n d i v i d u a l reasons clearly shows that the child's interest
is not one of the m a i n reasons for u s i n g s o c i a l n e t w o r k s . O n the contrary, the
p r e d o m i n a n t reasons are those oriented towards the parent's o w n ego or needs,
that is, essentially selfish reasons. Therefore, i f I start f r o m the premise that the
p r i v a c y of the i n d i v i d u a l , a n d therefore of the c h i l d , is to be protected a priori,
and that the international standard contained i n the Convention o n the Rights of
the C h i l d requires the state to reflect the best interests of the c h i l d i n its actions, I
conclude that standard cases of sharenting o n the basis of the parent's f r e e d o m of
expression w i l l not be defensible, a n d i n most cases, without the need to c a r r y out
a p r o p o r t i o n a l i t y test to resolve the conflict between the two rights.
Nevertheless, there are cases i n w h i c h sharenting c a n indeed be useful a n d
beneficial. For example, this c a n occur i n situations i n w h i c h sharenting represents
a w a y for disabled c h i l d r e n w h o have no other contact w i t h the w o r l d due to
their physical or m e n t a l conditions to use this f o r m of interaction. However, these
are likely to be exceptions.
42 Including the state. 'The principle is designed to ensure that decision-making for children
is not captured by the interests of others (such as the parents and the State) but undertaken
from a child-centred point of view.' See Cowden, 2016.
43 Desreumaux 2018.1 stress that this source is not a scientific study, yet it is suggestive of the
intentions of social network users, with the results of the study being broadly in line with
what I myself assumed on entry.
44 Polcak, 2018.
128 C E N T R A L E U R O P E A N JOURNAL OF COMPARATIVE LAW | V O L U M E I V 2023 1
5. Child defense options
The nature of sharenting defacto excludes the possibility that c h i l d r e n c a n defend
themselves against this p h e n o m e n o n . T h i s conclusion is a l l the more true w h e n
c h i l d r e n are younger. Therefore, a t h i r d p a r t y must be i n v o l v e d i n their protection.
However, the question is w h o this t h i r d person s h o u l d be. The second parent
is obviously a n option, as their influence c a n be invaluable to the c h i l d . The traditional
statutory defenses against the i n v a s i o n of the right of p r i v a c y therefore fail
and cannot satisfactorily fulfil their f u n c t i o n i n this case.
In borderline cases i n w h i c h the other parent fails i n their role as a protector
of the child's best interests, we must look elsewhere for protection. The State
seems to be a p r i m a r y option.
The protection of the interests of the c h i l d i n the C z e c h Republic is p r i m a r ily
ensured by the State t h r o u g h its o w n bodies, referred to by the abbreviation
" O S P O D " - 'Body for S o c i a l a n d L e g a l P r o t e c t i o n o f C h i l d r e n . ' M u n i c i p a l a n d
regional authorities p e r f o r m this role. OSPOD has extensive competences, w h i c h
conceptually include the p r o b l e m of sharenting. I believe, however, that i n practice,
this authority is not able to fulfil the role o f a child's protector against the
publication of data o n his or her person.
Paradoxically, the disadvantage of m u n i c i p a l authorities as c h i l d protection
bodies is that they operate at the local level. W h i l e knowledge of the local environment
(which is i l l u s o r y i n larger m u n i c i p a l i t i e s anyways) is a potential benefit
i n d e a l i n g w i t h " t r a d i t i o n a l " children's problems, t h e clear disadvantage is the
considerable decentralization of protection and, as a result, the l o w possibility of
specialization a n d the chance that real expert help w i l l be provided. It is therefore
u n l i k e l y that these bodies w i l l be able to identify the p r o b l e m , a n d even if they do,
they w i l l not be professionally prepared to deal w i t h it satisfactorily.
In some countries, the interests o f the c h i l d are p r o m o t e d a n d protected
by a "children's o m b u d s m a n . " 4 5
Slovak law, w h i c h i s closest to C z e c h law, h a s
established s u c h a n office.4 6
H o w e v e r , a closer look at t h e regulations o f this
body's competencies shows that it has considerable l i m i t s . This is understandable
since the task of the o m b u d s m a n has traditionally not been to act i n private law
relations. Similarly, the Children's O m b u d s m a n i n Slovakia serves to protect the
45 Wikipedia lists under the heading "Children's ombudsman" approximately four dozen
countries in which children's interests are protected by special bodies [Online]. Available
at: https://en.wikipedia.Org/wiki/Children%27s_ombudsman#Slovakia (Accessed: 31
August 2022).
46 Act No. 176/2015 Coll., the Act on the Commissioner for Children and the Commissioner
for Persons with Disabilities and on Amendments to Certain Acts (Zákon č. 176/2015 Z. z.
Zákon o komisárovi pre deti a komisárovi pre osoby so zdravotným postihnutím a o zmene
a doplnení niektorých zákonov).
S H A R E N T I N G A N D CHILDREN'S PRIVACY PROTECTION IN INTERNATIONAL, E U , A N D C Z E C H LAW 129
interests of c h i l d r e n i n the public sector.4 7
W h i l e it c a n deal w i t h a l l complaints, it
has no power of injunction against parents or social network operators.
I therefore do not see a child's o m b u d s m a n as a solution to the p r o b l e m ,
although there is no doubt that it c o u l d at least contribute to the c u l t i v a t i o n of
relations i n society.
Should such a n institution be established, it w o u l d i n principle be irrelevant
whether it w o u l d be a completely independent office or whether the competences
of the existing o m b u d s m a n w o u l d be extended. Between the two, I consider the
first o p t i o n preferable f r o m the child's point of view. Indeed, the protection of
a child's interests a n d the tendency to e x p a n d its o w n activities to achieve the
objective p u r s u e d w o u l d be part of the genetic make-up of such a new office.4 8
It is
precisely this activity that justifies its existence.
In m y o p i n i o n , however, this p r o b l e m s h o u l d not be solved by the state. It
is costly a n d potentially d a m a g i n g , as it weakens the role of parents w i t h i n the
family. Indeed, solutions c a n be p r o v i d e d i n other m a n n e r s , without a n outside
authority inappropriately entering into the relationship between the parent a n d
c h i l d . D e f i n i n g standards of behavior for stakeholders - i n this case, the social
network operators t h r o u g h w h i c h sharenting is i m p l e m e n t e d - offers a solution.
In fact, codes of conduct c a n define socially a n d legally acceptable standards for
sharenting. Technically, it s h o u l d no longer be a p r o b l e m for these networks to
filter shared content a n d w a r n of possible excesses or actively prevent t h e m by
m a k i n g the problematic account i n question inaccessible online. These standards
can easily be legally addressed privately i n the contracts that users of these networks
enter. If the system detects a p r o b l e m , it c a n automatically w a r n the user
that they are s h a r i n g potentially problematic content a n d e x p l a i n why. Indeed, I
believe that i n most cases, sharenting a n d oversharenting s i m p l y involve a failure
to t h i n k t h r o u g h the implications they m a y have for the c h i l d .
6. Conclusion
The a i m of this article was to determine the extent to w h i c h the current legal framew
o r k responds to the p r o b l e m of sharenting. I believe that the legal f r a m e w o r k is
sufficient for defining the rights of the c h i l d . It emphasizes the child's interest a n d
does not place the c h i l d i n the role of a subordinate object of parents. This applies
to a l l areas of legislation e x a m i n e d - C z e c h statutory law, constitutional law, a n d
international public law. The p r o b l e m lies outside of the content of the legislation:
47 See the definition of competence in Section 3 of Act No. 176/2015 Coll.
48 It can be assumed that the newly established body (this applies to anybody) will want to
establish itself among the existing institutions and define its competences, so a proactive
approach can be expected. The downside, however, is the further expansion of an already
"big state" that employs more and more people in the non-productive sphere.
130 C E N T R A L E U R O P E A N JOURNAL OF COMPARATIVE LAW | V O L U M E I V 2023 1
the essence of the p r o b l e m is parents' l o w awareness of children's rights. Parents
often seem to be unaware of the risks that their actions may pose to their c h i l d r e n .
This is s u r p r i s i n g , because i f there was a n element of decency i n the relationship
w i t h the c h i l d - a n d it is i n d e e d decent to treat the other p e r s o n w i t h respect
and to respect their p r i v a c y - t h e n there w o u l d be no p r o b l e m i n the area of law.
Therefore, I believe that the solution to sharenting s h o u l d lie at the private l a w
level t h r o u g h codes of conduct that social network operators voluntarily c o m m i t to
respect. The solution also lies i n the gradual education of c h i l d r e n a n d parents.
A n o t h e r goal of the article was to identify possible defenses against sharenting.
In the article, I deliberately avoided addressing the issue of the statute
of l i m i t a t i o n s o n the child's potential c l a i m s - the question of w h e n they are
time-barred. In fact, I believe that sharenting (especially oversharenting) should
be prevented i n light of its possible consequences o n children's development a n d
health. Prevention is therefore c r u c i a l , as the h a r m that may be caused to the c h i l d
m a y be irreversible. Moreover, e m p i r i c a l experience f r o m advocacy shows that i n
the C z e c h legal system, it is difficult to address issues of c o m p e n s a t i o n for n o n m
a t e r i a l damages. In the case of sharenting, the situation is further complicated
by the fact that it w o u l d presuppose a long-lasting j u d i c i a l dispute between parents
and c h i l d r e n . Therefore, it is difficult to defend a c h i l d against sharenting u n d e r
the current circumstances. A t the same time, I do not t h i n k that the state should
actively intervene i n the issue by establishing n e w institutions. In contrast, the
office of the Children's O m b u d s m a n , i f established, c o u l d be useful by p r o v i d i n g
a p l a t f o r m for the f o r m u l a t i o n of standards for the treatment of c h i l d r e n a n d for
education.
The last objective was to assess the extent to w h i c h instances of sharenting
are legal a n d where the boundaries of the permissible disclosure of i n f o r m a t i o n
about a c h i l d lie. In f o r m u l a t i n g this goal, I h a d not expected that i n the course of
w r i t i n g this article I w o u l d reach such a r a d i c a l change i n m y o w n perspective.
If the d e f i n i n g s t a n d a r d is the best interests of the c h i l d , t h e n i n m y p e r s o n a l
opinion, there are not m a n y situations i n w h i c h s h a r i n g i n f o r m a t i o n about a c h i l d
c o u l d be beneficial to that c h i l d . Such a stark c o n c l u s i o n does not apply to the
traditional exchange of i n f o r m a t i o n w i t h i n a close f a m i l y circle. Similarly, sharing
a child's success i n sports is not problematic. However, there is no support i n the
law for the systematic s h a r i n g of i n f o r m a t i o n about a child's i n n e r life.
S H A R E N T I N G A N D CHILDREN'S PRIVACY PROTECTION IN INTERNATIONAL, E U , A N D C Z E C H LAW 131
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