The Relationship Between Social Media Use and Children’s Rights
The widespread use of information and communication technologies has led to an increase in internet usage,[1]and the intensive use of the internet has, in turn, brought about technological innovations and transformations. Today, the existence of the internet is inseparable from that of technology. While those in favor of the rapid rise of the internet and technology interpret this phenomenon as a reflection of the boundless nature of human intelligence, critics focus on the pressure that technology may exert on individuals[2].
Many areas that were once considered private or confidential have lost their functionality in light of technological advancements; numerous domains that were relatively private have now become accessible with a single action by social media users[3]. Especially when the subject of the shared content is a child, such situations must be approached with particular care, both legally and psychologically. In today's world, where child-rearing rituals vary from generation to generation, the facilitative nature of social media has given rise to a trend in which parents make every moment of their children visible and adopt identities such as “instamom” or “youtubermom,” turning their parenting into a commercial enterprise. The short- and long-term impacts of these shares on the child’s legal and psychological integrity must be examined in terms of the concept of privacy and the violation of children's rights.
In this article, which constitutes the first part of the series we have prepared in this regard, the relationship between social media posts and children's rights will be examined; in the following section, studies focusing on security issues encountered on social media platforms, violations of children's rights committed through these platforms, and potential solutions will be evaluated.
The Relationship Between Social Media Use and Children's Rights
The disclosure of individuals' data on social media platforms to third parties beyond their authority and control is considered not only a violation of constitutionally protected personal rights, but also an unlawful data processing activity due to the processing of such data without the individual's consent. While this poses a threat to every social media user, it becomes an especially sensitive issue in the case of children—who lack the ability to express themselves and to distinguish between the real and virtual worlds—when such unlawful actions are carried out on social media. The sharing of personal data such as a child’s name, age, gender, toy preferences, style of play, images, toilet training, and friends by their parents on social media platforms constitutes data processing within the meaning of the relevant provisions of Law No. 6698 on the Protection of Personal Data (“KVKK”). Of course, every parent is in the best position to make decisions about what to share regarding their child on social media. However, not every parent possesses sufficient awareness of the implications of these posts and the potential consequences they may bring about in the future.
The personal boundaries of children becoming blurred, the confusion between virtuality and reality, and the persistence of privacy-related concerns as a result of parental social media posts represent the psychological dimension of the issue. On the other hand, the processing of the child’s personal data and the violation of their right to private life constitute legal infringements. Before examining the relationship between social media use and children's rights, relevant definitions will be addressed.
1.1. The Concept of the Child
In legal terms, the concept of a “child” is used in various contexts to distinguish between adults and minors, and to establish familial ties between children and their parents. According to Article 28 [4] of the Turkish Civil Code No. 4721 (“TCC”), “Legal personality begins at the moment a child is born alive and ends upon death.” Accordingly, childhood begins with the acquisition of legal personality and ends upon reaching the age of eighteen (TCC Art. 11/1). In line with the United Nations Convention on the Rights of the Child,“a child is defined as every human being below the age of eighteen unless, under the law applicable to the child, majority is attained earlier.” [5]
Under Turkish civil law, every child has legal capacity and the right to personality. However, as minors lacking the power of discernment and the ability to comprehend the consequences of their actions are deemed legally incapable under the TCC, they may only acquire rights or incur obligations through their legal representatives—either a parent or a guardian [6]. All legal actions are therefore undertaken by the child's legal representative on the child's behalf. This regulation aims to ensure that children are protected against potential exploitation or interference from external sources by those holding parental custody rights.
Although the Turkish Civil Code (“TCC”) does not prescribe a specific age at which discernment is presumed absent,[7] it would be inaccurate to assume that all children possess the capacity to discern.[8] Indeed, the existence of discernment requires both the ability to comprehend and to exercise will.[9] Considering that the children who are the subject of this study are under the age of 18 and that their lives—from birth, and often even from the moment of birth—have been shared by their parents on social media, these children typically lack the awareness and willpower to fully grasp the risks, consequences, and privacy implications of having their personal data, images, and videos processed on such platforms. As a result, this responsibility is entrusted to their legal representatives—that is, their parents.
This obligation is clearly reflected in Article 3 of the United Nations Convention on the Rights of the Child, which states: “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”[10]
As explained in the previous section, the sharing of a child’s name, age, preferences, photographs, and videos via social media constitutes the subject matter of data processing activities. On the other hand, a mother’s seemingly innocent and well-intentioned post sharing her child’s photo may not only be hurtful to the child but also carry various hidden dangers.[11] A well-meaning parent may face the harsh reality that their post could invite malicious use, that others may access, download, and manipulate the photos, which could then be published on publicly accessible websites by pedophiles or child abusers.[12] Posts that families believe they are sharing only within their own circles can easily be exploited by ill-intentioned individuals. In the case of Danica Patterson, who experienced child abuse, the photos, videos, and personal information posted by Patterson on Facebook on behalf of her daughter were stolen by another man living in New York, who then presented Patterson’s four-year-old daughter as if she were his own.[13] Considering the global scale of internet and social media usage, it would not be wrong to say that hundreds of incidents and crimes similar to the Patterson case occur daily, many of which likely go unnoticed.
Before evaluating the legal nature of social media posts involving children, the relevant legal regulations governing children’s rights, their right to privacy, and the protection of their personal data will be briefly reviewed.
1.2. Legal Regulations Regarding Children’s Rights
1.2.1. International Regulations
Considering the subject of this study, namely children’s rights and the protection of their private lives, it is useful to refer to the first international document defining the right to privacy: the United Declaration of Human Rights. According to Article 12 of the Declaration, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”[14]. Although the regulation does not contain a specific and separate provision regarding children’s private lives, this does not negate the fact that children also have rights to privacy. While awareness of private life and the concept of privacy is important in children’s development, Serozan emphasizes that in a society where children do not have human rights, adults cannot benefit from these rights either; children’s rights are both the foundation and the driving force of human rights[15].
1.2.1.1. United Nations Convention on the Rights of the Child
Believing that the family, as the fundamental unit of society and the natural environment for the growth and well-being of all its members, especially children, must receive the necessary protection and assistance to fully carry out its responsibilities within society, the United Nations Convention on the Rights of the Child was adopted by the member states and entered into force on September 2, 1990. It is considered one of the most significant documents in the field of children’s rights[16]. While broadly aimed at protecting the interests and best interests of the child, the Convention explicitly establishes the child’s right to privacy and confidentiality with provisions stating that “No child, shall be subjected to arbitrary or unlawful interference with his or her privacy, family life, home, or correspondence, nor to unlawful attacks on his or her honor and reputation,” and “The child has the right to the protection of the law against such interference or attacks.” According to Erdoğan, the relevant article of the Convention stipulates that arbitrary and unjust interference with the child’s private life is prohibited, and through a general provision, the child’s private life is protected not only against third parties but also against parents[17]. In such cases, the fundamental principle is to prioritize the child’s right to privacy, and parents must take necessary precautions regarding every post touching on the child’s personality rights, considering the potential risks that may arise in the future. The essence here is that the child’s private life must remain reserved for them from the moment of birth. The Constitutional Court (“AYM”), in its decision dated 31.03.1987, numbered 1986/24 (case) and 1987/8 (decision), stated that “The protection of private life primarily means the protection of the confidentiality of this life, preventing it from being exposed to others... The right to respect for private life is a fundamental right for the individual’s personality, and if not sufficiently protected, it is impossible for individuals and therefore society to feel peaceful and live in security. For these reasons, various acts of violation of this confidentiality have been criminalized and subject to penalties.”[18]Based on the legal regulations and the AYM decision, it can be argued that the sharing of data concerning the child’s private life on the internet, particularly through social media, without the child’s consent, is considered an interference with their private sphere[19].
1.2.1.2. European Convention on the Exercise of Children’s Rights[20]
Signed in Strasbourg in 1996 and entering into force in 2000, this Convention prioritizes the rights and best interests of children; it specifically emphasizes that children’s views must be duly considered in family proceedings affecting them and recognizes the role of families in protecting and promoting their children’s rights and best interests[21].
1.2.1.3. European Data Protection Regulation
The European Union General Data Protection Regulation (“Regulation”) (GDPR) includes a special provision regarding the protection of children’s personal data and obtaining their consent [22]. According to Article 8, titled “Conditions applicable to child's consent in relation to information society services,” the processing of a child’s personal data requires the child to be at least 16 years old. If this condition is met, the processing of the child’s personal data is considered lawful; however, if the child whose personal data is being processed is over 16 years old, this data processing activity constitutes a legal basis for lawfulness. “If the child is under 16 years old, such processing shall be lawful only if and to the extent that consent is given or authorized by the holder of parental responsibility over the child.” Since children under 16 are unlikely to be aware of the risks and consequences of processing their personal data, this obligation and authority to give consent are granted to those who have parental responsibility. Furthermore, the provision indicates that Member States may lower this age limit to 13. Thus, for the relevant purposes, a younger age limit may be established by law, provided it is not below 13 years old.
Considering the relevant legislation and doctrinal views, the age limit of 16 is set to regulate the consent element in the sharing of children’s personal data, fundamentally aiming to protect children’s personal data and safeguard the child against third parties outside the family. In other words, as understood from the wording of the provision, for children under 16, the parents who give consent will assess the child’s needs and circumstances and provide consent accordingly. However, the provision is unclear regarding what kind of protection is afforded to the child concerning shares made by the child’s own parents, rather than those made by third parties. Although it is assumed that parents, who undertake the duty of care and protection, are capable of making the most appropriate and reasonable decisions, no distinction has been made as to whether the same approach should be followed when evaluating the consequences of processing the personal data of custodial parents. Nonetheless, many parents, through their social media posts about their children, may cause psychological and legal issues both currently and potentially in the future[23].
1.2.2. National Regulations
1.2.2.1. The Constitution of the Republic of Türkiye
The Constitution of the Republic of Türkiye contains certain specific provisions aimed at protecting children’s rights. Article 41, paragraph 2, states: “The State shall take necessary measures and establish organizations to ensure the peace and welfare of the family, especially the protection of mothers and children, and to ensure the teaching and implementation of family planning.” An amendment added to Article 41 in 2010 provides: “The State shall take protective measures against all kinds of abuse and violence towards children.” This provision reflects that the constitutional regulations concerning children are designed with the child’s best interests in mind, aiming for the State to take all necessary measures to protect and oversee children
1.2.2.2. Turkish Civil Code
The Turkish Civil Code (TMK) includes special provisions aimed at protecting the best interests of the child and addressing many areas such as the child’s welfare and the risk to their physical and mental development. Accordingly, pursuant to Article 185/II of the TMK, “spouses are jointly responsible for the care, education, and supervision of their children.” Article 346 provides that “if the child’s welfare and development are at risk, and the mother and father are unable or incapable of remedying the situation, the judge shall take the necessary measures to protect the child.” Under Article 347, “if the child’s physical and mental development is endangered or the child is morally abandoned, the judge shall take the necessary precautions.”
As can be seen from the provisions in the Turkish Civil Code, even in cases where a child suffers social abuse or rights violations through social media posts made by their own parents, the State protects the child’s best interests against their own parents. Indeed, through this role, the State aims to prevent negative behaviors in advance to avoid potential future harms to children’s rights[24].
1.2.2.3. Turkish Penal Code
In the Turkish Penal Code No. 5237[25], a child is defined as a “person who has not yet reached the age of eighteen”; furthermore, provisions have been established for the protection of children’s rights and interests. Additionally, the commercial exploitation of children is criminalized under Article 226 of the Turkish Penal Code[26].
1.3. Processing of Children’s Data Through Sharing on Social Media
As mentioned in the previous sections, according to Article 3 of the Personal Data Protection Law (KVKK), the processing of personal data is defined as “any operation performed on data such as obtaining, recording, storing, preserving, altering, reorganizing, disclosing, transferring, acquiring, making accessible, classifying, or preventing the use of personal data, whether fully or partially by automated means or by non-automated means as part of a data recording system.” Based on this definition, the sharing by parents on social media platforms of each child’s name, age, height, toilet times, playmates, first words, sleep patterns, and feeding habits constitutes the processing of personal data.
These posts, made in good faith by parents and often shared within their own social circles, are undoubtedly stored in the limitless data pools of virtual networks. Social networks have effectively become a data treasure trove for child abusers. According to a study conducted by the Mott Health Hospital of the University of Michigan with parents who share about their children on social media, it was observed that most social media posts concern children’s sleep and feeding routines, discipline, and behavior. The study also noted that parents view their social media posts as a means to express that they are not alone on their parenting journey and to share how they cope with the daily challenges of childcare[27]. The study recorded that two-thirds of families recognized the dangers of sharing information about their children, and more than half expressed concerns that their children might feel ashamed of these shared posts when they grow up[28].
With the advancement of information and communication technologies, the concept of parenting has also shifted; parenting and motherhood have begun to exist in the virtual environment. Through Instagram, where visual content is prominent, new-generation mothers have introduced the term “Instamom,” a blend of “Instagram” and “mother,” by sharing their motherhood journeys[29]. Instamoms, who have entered the literature as "Instagram mothers," are described as using accounts created for their children or their own accounts to share their children’s daily lives, school experiences, infancy, and their own motherhood experiences through their children, thereby generating commercial gain through this method[30]. This situation has also brought about the concept of “sharenting.” Derived from the words “share” and “parenting,” sharenting refers to parents publicly sharing content related to their children on social media[31]. While some instamoms make these shares through their own accounts, others create accounts on behalf of their children and continue collaboration with advertisements and brands through these accounts. Although this practice adapts to the necessities of the modern era, it becomes particularly significant in cases where the subject of the sharing is the child, and the purpose is to generate commercial profit from social media. According to Girgin/Gönal, parents who use social media tools to earn financial gains cause economic exploitation of children; it is stated that children are exploited, and profits are made through them, and in advertising campaigns that use children’s innocence, both brands reach wide audiences and families become visible and gain income[32]. Girgin/Gönal describe this situation as a win-win model but consider that in cases where a child-who lacks awareness and discernment and is dependent on care- is turned into a commercial object and money is made through the child, even if by the parent, sharing such intimate moments extensively on social media constitutes an attack on the child’s personal rights[33]. Duygulu states that Instamoms digitize their motherhood identity by transferring their motherhood experiences to the virtual environment[34]. Parsa and Akmeşe regard Instamoms -who identify themselves as Instagram mothers and, starting from pregnancy through childbirth and childcare, promote products of contracted companies by sharing their child-related experiences and motherhood journey, thus generating income -as engaging in exploitation through invasion of privacy and profiting from the child[35]. In our opinion, sharing a child’s most private moments, memories, and personal data – whether through public or private social media accounts- from birth onwards, when the child has not yet developed self-awareness and lacks the capacity to make decisions about their own body and life, should be considered an infringement of personal rights and a violation of the child’s right to privacy. Furthermore, in cases where mothers engage in brand collaborations and advertising agreements through posts involving their children or accounts opened in their children’s names, with the aim of generating commercial profit, such conduct must be regarded as economic exploitation of the child. Indeed, it is evident that a seemingly innocent post can, on social media networks that are far from innocent, cause significant psychological and legal harm to children. It is a known fact that photos of children shared on social media are sometimes manipulated and reposted on accounts created by pedophiles[36]. For instance, a mother who shares a photo of her child in school uniform on social media- believing it is limited to her social circle- ends up not only revealing her child’s name or photo, but also inadvertently disclosing the child’s school and location to the public. Moreover, this post will not remain confined to that limited audience; it may be forwarded, copied, and stored for other purposes. In a publication on child abuse by the Turkish Pedagogy Association, it is stated that most child abuse is committed by individuals close to the family, and therefore, even visuals that parents believe are shared only within their inner circle can pose a risk of exploitation[37]. The World Health Organization (“WHO”) defines child abuse as “all forms of physical and/or emotional ill-treatment, sexual abuse, neglect, and commercial or other exploitationthat result in actual or potential harm to the child’s health, survival, development, or dignity” involving a child under the age of 18[38]. Moreover, such social media posts no longer pertain solely to children’s personal data -they now increasingly encompass health data as well. Today, some Instamoms share their children’s illnesses, health conditions, and even sensitive personal data concerning their physical development with their followers under the guise of “motherhood experience,” effectively “presenting it to the public.” However, the content of such posts may include serious illnesses, surgeries, or chronic conditions. In the future, children conducting a simple internet search on themselves may realize that their personal data was known to strangers long ago. When confronted with the fact that their parents once shared photos and information they would not currently consent to -for commercial gain- they will very likely come to understand that their privacy was violated, their personality rights were infringed, and their right to private life was compromised.
In evaluating the lawfulness of processing children’s personal data on social media, it must first be noted that, as a rule, personal data cannot be processed without the explicit consent of the data subject. However, within the scope of this study, in the case of individuals under the age of 18 who are fully legally incapacitated due to lacking the capacity to distinguish, any explicit consent given by the child for the processing of their personal data shall not be deemed valid. In such cases, the lawfulness of the data processing activity requires the consent of the individuals who hold parental custody. The purpose of this provision is to ensure that fully incapacitated minors, who are not sufficiently aware of the potential risks and consequences of data processing activities, remain under the protection of their families[39]. As a general rule, parents who are under the obligation to protect the child are expected not to abuse the custodial rights granted to them. However, when parents, through their social media posts, cause harm to the child’s interests and rights, the legal framework does not clearly foresee what kind of measures or consequences will follow[40]. In the presence of such a situation, it must be acknowledged that children whose right to privacy has been violated and whose personal data has been processed without their consent should be entitled to assert their rights under data protection legislation against their own families[41].
Especially concerning images from infancy and childhood, it is evident that the children have no—and cannot have—consent, lack the cognitive capacity to understand the nature of the shared content, and considering that these contents are often shared on public accounts with large followings, this situation carries risks that may legally and psychologically jeopardize both the children and their families in the near future[42]. Within this context, the next section will address potential security issues and rights violations that may arise on social media platforms.
As the subject of this study, the full responsibility for sharing children’s personal data on social media platforms lies with the parents who hold custody rights[43]. Undoubtedly, just as families make the best decisions regarding their children’s education and development, they must also exercise the utmost care in protecting their children’s personal data. In this context, while parental consent is required for third parties to process the child’s data, a separate assessment should be made regarding what measures should be taken if the same sharing is done by the parents themselves and results in a violation of the child’s personality rights and the privacy of their private life.
Building on this, the second part of our article series will examine the security issues that may arise on social media platforms and possible solutions.
Prepared by: Adv. Birce Aksakal Yılmazer
[1] According to the Digital 2022 report, "62.5% of the world’s population (approximately 4.95 billion people) are internet users." For more detailed information, seehttps://wearesocial.com/uk/blog/2022/01/digital-2022/ (Accessed: 18.11.2023).
[2] ÇAKIR, M.; Sosyal Medya ve Gösteri, Büyükaslan, A ve Kırık, M. A (Ed.). “Sosyalleşen Birey” Sosyal Medya, p.12, Konya: Çizgi Kitabevi, 2017, 11-68, (Direct citation: GÜNGÖR, ibid., p.31).
[3] GÜNGÖR, Ayten; “Sosyal Medyada Çocuk Hakları İhlali ve İstismarı: Instagram Anneleri”, p.50, Marmara University Institute of Social Sciences, Department of Journalism, General Journalism Science Branch, Master’s Thesis, Istanbul, 2019, Ulusal Tez Merkezi | Anasayfa (yok.gov.tr), (Accessed: 18.11.2023).
[7] DURAL, Mustafa/ ÖĞÜZ, Tufan; Türk Özel Hukuku, Kişiler Hukuku, p.58, Volume II, Filiz Kitabevi, İstanbul,2013.
[8] ERDOĞAN, Canan; “Çocukların Kişisel Verilerinin Korunması (Sosyal Medya Örneği Kapsamında)”, p.2468, D.E.Ü. Faculty of Law Journal, Prof. Dr. Durmuş TEZCAN’a Armağan, Vol.21, Special Issue, 2019, pp. 2445-2467, https://hukuk.deu.edu.tr/wp-content/uploads/2019/09/CANAN-ERDOGAN.pdf, (Accessed: 18.11.2023).
[15] SEROZAN, Rona; “Çocuk Hukuku”, s. 2107, Vedat Kitapçılık, 2nd Edition, İstanbul, 2017), (Direct citation: SERİN, Hüseyin; “Sosyal Medyada Çocuk Hakları İhlalleri: Ebeveynler ve Öğretmenler Farkında mı?, p.9, Eskişehir Osmangazi University Journal of Social Sciences, April 2019, 20 (Special Issue), https://dergipark.org.tr/tr/pub/ogusbd/issue/44338/555107, (Accessed: 18.11.2023).
[16] For detailed information see “United Nations Convention on the Rights of the Child”, https://www.unicef.org/, (Accessed: 18.11.2023).
The widespread use of information and communication technologies has led to an increase in internet usage,[1]and the intensive use of the internet has, in turn, brought about technological innovations and transformations. Today, the existence of the internet is inseparable from that of technology. While those in favor of the rapid rise of the internet and technology interpret this phenomenon as a reflection of the boundless nature of human intelligence, critics focus on the pressure that technology may exert on individuals[2].
Many areas that were once considered private or confidential have lost their functionality in light of technological advancements; numerous domains that were relatively private have now become accessible with a single action by social media users[3]. Especially when the subject of the shared content is a child, such situations must be approached with particular care, both legally and psychologically. In today's world, where child-rearing rituals vary from generation to generation, the facilitative nature of social media has given rise to a trend in which parents make every moment of their children visible and adopt identities such as “instamom” or “youtubermom,” turning their parenting into a commercial enterprise. The short- and long-term impacts of these shares on the child’s legal and psychological integrity must be examined in terms of the concept of privacy and the violation of children's rights.
In this article, which constitutes the first part of the series we have prepared in this regard, the relationship between social media posts and children's rights will be examined; in the following section, studies focusing on security issues encountered on social media platforms, violations of children's rights committed through these platforms, and potential solutions will be evaluated.
The Relationship Between Social Media Use and Children's Rights
The disclosure of individuals' data on social media platforms to third parties beyond their authority and control is considered not only a violation of constitutionally protected personal rights, but also an unlawful data processing activity due to the processing of such data without the individual's consent. While this poses a threat to every social media user, it becomes an especially sensitive issue in the case of children—who lack the ability to express themselves and to distinguish between the real and virtual worlds—when such unlawful actions are carried out on social media. The sharing of personal data such as a child’s name, age, gender, toy preferences, style of play, images, toilet training, and friends by their parents on social media platforms constitutes data processing within the meaning of the relevant provisions of Law No. 6698 on the Protection of Personal Data (“KVKK”). Of course, every parent is in the best position to make decisions about what to share regarding their child on social media. However, not every parent possesses sufficient awareness of the implications of these posts and the potential consequences they may bring about in the future.
The personal boundaries of children becoming blurred, the confusion between virtuality and reality, and the persistence of privacy-related concerns as a result of parental social media posts represent the psychological dimension of the issue. On the other hand, the processing of the child’s personal data and the violation of their right to private life constitute legal infringements. Before examining the relationship between social media use and children's rights, relevant definitions will be addressed.
1.1. The Concept of the Child
In legal terms, the concept of a “child” is used in various contexts to distinguish between adults and minors, and to establish familial ties between children and their parents. According to Article 28 [4] of the Turkish Civil Code No. 4721 (“TCC”), “Legal personality begins at the moment a child is born alive and ends upon death.” Accordingly, childhood begins with the acquisition of legal personality and ends upon reaching the age of eighteen (TCC Art. 11/1). In line with the United Nations Convention on the Rights of the Child,“a child is defined as every human being below the age of eighteen unless, under the law applicable to the child, majority is attained earlier.” [5]
Under Turkish civil law, every child has legal capacity and the right to personality. However, as minors lacking the power of discernment and the ability to comprehend the consequences of their actions are deemed legally incapable under the TCC, they may only acquire rights or incur obligations through their legal representatives—either a parent or a guardian [6]. All legal actions are therefore undertaken by the child's legal representative on the child's behalf. This regulation aims to ensure that children are protected against potential exploitation or interference from external sources by those holding parental custody rights.
Although the Turkish Civil Code (“TCC”) does not prescribe a specific age at which discernment is presumed absent,[7] it would be inaccurate to assume that all children possess the capacity to discern.[8] Indeed, the existence of discernment requires both the ability to comprehend and to exercise will.[9] Considering that the children who are the subject of this study are under the age of 18 and that their lives—from birth, and often even from the moment of birth—have been shared by their parents on social media, these children typically lack the awareness and willpower to fully grasp the risks, consequences, and privacy implications of having their personal data, images, and videos processed on such platforms. As a result, this responsibility is entrusted to their legal representatives—that is, their parents.
This obligation is clearly reflected in Article 3 of the United Nations Convention on the Rights of the Child, which states: “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.”[10]
As explained in the previous section, the sharing of a child’s name, age, preferences, photographs, and videos via social media constitutes the subject matter of data processing activities. On the other hand, a mother’s seemingly innocent and well-intentioned post sharing her child’s photo may not only be hurtful to the child but also carry various hidden dangers.[11] A well-meaning parent may face the harsh reality that their post could invite malicious use, that others may access, download, and manipulate the photos, which could then be published on publicly accessible websites by pedophiles or child abusers.[12] Posts that families believe they are sharing only within their own circles can easily be exploited by ill-intentioned individuals. In the case of Danica Patterson, who experienced child abuse, the photos, videos, and personal information posted by Patterson on Facebook on behalf of her daughter were stolen by another man living in New York, who then presented Patterson’s four-year-old daughter as if she were his own.[13] Considering the global scale of internet and social media usage, it would not be wrong to say that hundreds of incidents and crimes similar to the Patterson case occur daily, many of which likely go unnoticed.
Before evaluating the legal nature of social media posts involving children, the relevant legal regulations governing children’s rights, their right to privacy, and the protection of their personal data will be briefly reviewed.
1.2. Legal Regulations Regarding Children’s Rights
1.2.1. International Regulations
Considering the subject of this study, namely children’s rights and the protection of their private lives, it is useful to refer to the first international document defining the right to privacy: the United Declaration of Human Rights. According to Article 12 of the Declaration, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”[14]. Although the regulation does not contain a specific and separate provision regarding children’s private lives, this does not negate the fact that children also have rights to privacy. While awareness of private life and the concept of privacy is important in children’s development, Serozan emphasizes that in a society where children do not have human rights, adults cannot benefit from these rights either; children’s rights are both the foundation and the driving force of human rights[15].
1.2.1.1. United Nations Convention on the Rights of the Child
Believing that the family, as the fundamental unit of society and the natural environment for the growth and well-being of all its members, especially children, must receive the necessary protection and assistance to fully carry out its responsibilities within society, the United Nations Convention on the Rights of the Child was adopted by the member states and entered into force on September 2, 1990. It is considered one of the most significant documents in the field of children’s rights[16]. While broadly aimed at protecting the interests and best interests of the child, the Convention explicitly establishes the child’s right to privacy and confidentiality with provisions stating that “No child, shall be subjected to arbitrary or unlawful interference with his or her privacy, family life, home, or correspondence, nor to unlawful attacks on his or her honor and reputation,” and “The child has the right to the protection of the law against such interference or attacks.” According to Erdoğan, the relevant article of the Convention stipulates that arbitrary and unjust interference with the child’s private life is prohibited, and through a general provision, the child’s private life is protected not only against third parties but also against parents[17]. In such cases, the fundamental principle is to prioritize the child’s right to privacy, and parents must take necessary precautions regarding every post touching on the child’s personality rights, considering the potential risks that may arise in the future. The essence here is that the child’s private life must remain reserved for them from the moment of birth. The Constitutional Court (“AYM”), in its decision dated 31.03.1987, numbered 1986/24 (case) and 1987/8 (decision), stated that “The protection of private life primarily means the protection of the confidentiality of this life, preventing it from being exposed to others... The right to respect for private life is a fundamental right for the individual’s personality, and if not sufficiently protected, it is impossible for individuals and therefore society to feel peaceful and live in security. For these reasons, various acts of violation of this confidentiality have been criminalized and subject to penalties.”[18]Based on the legal regulations and the AYM decision, it can be argued that the sharing of data concerning the child’s private life on the internet, particularly through social media, without the child’s consent, is considered an interference with their private sphere[19].
1.2.1.2. European Convention on the Exercise of Children’s Rights[20]
Signed in Strasbourg in 1996 and entering into force in 2000, this Convention prioritizes the rights and best interests of children; it specifically emphasizes that children’s views must be duly considered in family proceedings affecting them and recognizes the role of families in protecting and promoting their children’s rights and best interests[21].
1.2.1.3. European Data Protection Regulation
The European Union General Data Protection Regulation (“Regulation”) (GDPR) includes a special provision regarding the protection of children’s personal data and obtaining their consent [22]. According to Article 8, titled “Conditions applicable to child's consent in relation to information society services,” the processing of a child’s personal data requires the child to be at least 16 years old. If this condition is met, the processing of the child’s personal data is considered lawful; however, if the child whose personal data is being processed is over 16 years old, this data processing activity constitutes a legal basis for lawfulness. “If the child is under 16 years old, such processing shall be lawful only if and to the extent that consent is given or authorized by the holder of parental responsibility over the child.” Since children under 16 are unlikely to be aware of the risks and consequences of processing their personal data, this obligation and authority to give consent are granted to those who have parental responsibility. Furthermore, the provision indicates that Member States may lower this age limit to 13. Thus, for the relevant purposes, a younger age limit may be established by law, provided it is not below 13 years old.
Considering the relevant legislation and doctrinal views, the age limit of 16 is set to regulate the consent element in the sharing of children’s personal data, fundamentally aiming to protect children’s personal data and safeguard the child against third parties outside the family. In other words, as understood from the wording of the provision, for children under 16, the parents who give consent will assess the child’s needs and circumstances and provide consent accordingly. However, the provision is unclear regarding what kind of protection is afforded to the child concerning shares made by the child’s own parents, rather than those made by third parties. Although it is assumed that parents, who undertake the duty of care and protection, are capable of making the most appropriate and reasonable decisions, no distinction has been made as to whether the same approach should be followed when evaluating the consequences of processing the personal data of custodial parents. Nonetheless, many parents, through their social media posts about their children, may cause psychological and legal issues both currently and potentially in the future[23].
1.2.2. National Regulations
1.2.2.1. The Constitution of the Republic of Türkiye
The Constitution of the Republic of Türkiye contains certain specific provisions aimed at protecting children’s rights. Article 41, paragraph 2, states: “The State shall take necessary measures and establish organizations to ensure the peace and welfare of the family, especially the protection of mothers and children, and to ensure the teaching and implementation of family planning.” An amendment added to Article 41 in 2010 provides: “The State shall take protective measures against all kinds of abuse and violence towards children.” This provision reflects that the constitutional regulations concerning children are designed with the child’s best interests in mind, aiming for the State to take all necessary measures to protect and oversee children
1.2.2.2. Turkish Civil Code
The Turkish Civil Code (TMK) includes special provisions aimed at protecting the best interests of the child and addressing many areas such as the child’s welfare and the risk to their physical and mental development. Accordingly, pursuant to Article 185/II of the TMK, “spouses are jointly responsible for the care, education, and supervision of their children.” Article 346 provides that “if the child’s welfare and development are at risk, and the mother and father are unable or incapable of remedying the situation, the judge shall take the necessary measures to protect the child.” Under Article 347, “if the child’s physical and mental development is endangered or the child is morally abandoned, the judge shall take the necessary precautions.”
As can be seen from the provisions in the Turkish Civil Code, even in cases where a child suffers social abuse or rights violations through social media posts made by their own parents, the State protects the child’s best interests against their own parents. Indeed, through this role, the State aims to prevent negative behaviors in advance to avoid potential future harms to children’s rights[24].
1.2.2.3. Turkish Penal Code
In the Turkish Penal Code No. 5237[25], a child is defined as a “person who has not yet reached the age of eighteen”; furthermore, provisions have been established for the protection of children’s rights and interests. Additionally, the commercial exploitation of children is criminalized under Article 226 of the Turkish Penal Code[26].
1.3. Processing of Children’s Data Through Sharing on Social Media
As mentioned in the previous sections, according to Article 3 of the Personal Data Protection Law (KVKK), the processing of personal data is defined as “any operation performed on data such as obtaining, recording, storing, preserving, altering, reorganizing, disclosing, transferring, acquiring, making accessible, classifying, or preventing the use of personal data, whether fully or partially by automated means or by non-automated means as part of a data recording system.” Based on this definition, the sharing by parents on social media platforms of each child’s name, age, height, toilet times, playmates, first words, sleep patterns, and feeding habits constitutes the processing of personal data.
These posts, made in good faith by parents and often shared within their own social circles, are undoubtedly stored in the limitless data pools of virtual networks. Social networks have effectively become a data treasure trove for child abusers. According to a study conducted by the Mott Health Hospital of the University of Michigan with parents who share about their children on social media, it was observed that most social media posts concern children’s sleep and feeding routines, discipline, and behavior. The study also noted that parents view their social media posts as a means to express that they are not alone on their parenting journey and to share how they cope with the daily challenges of childcare[27]. The study recorded that two-thirds of families recognized the dangers of sharing information about their children, and more than half expressed concerns that their children might feel ashamed of these shared posts when they grow up[28].
With the advancement of information and communication technologies, the concept of parenting has also shifted; parenting and motherhood have begun to exist in the virtual environment. Through Instagram, where visual content is prominent, new-generation mothers have introduced the term “Instamom,” a blend of “Instagram” and “mother,” by sharing their motherhood journeys[29]. Instamoms, who have entered the literature as "Instagram mothers," are described as using accounts created for their children or their own accounts to share their children’s daily lives, school experiences, infancy, and their own motherhood experiences through their children, thereby generating commercial gain through this method[30]. This situation has also brought about the concept of “sharenting.” Derived from the words “share” and “parenting,” sharenting refers to parents publicly sharing content related to their children on social media[31]. While some instamoms make these shares through their own accounts, others create accounts on behalf of their children and continue collaboration with advertisements and brands through these accounts. Although this practice adapts to the necessities of the modern era, it becomes particularly significant in cases where the subject of the sharing is the child, and the purpose is to generate commercial profit from social media. According to Girgin/Gönal, parents who use social media tools to earn financial gains cause economic exploitation of children; it is stated that children are exploited, and profits are made through them, and in advertising campaigns that use children’s innocence, both brands reach wide audiences and families become visible and gain income[32]. Girgin/Gönal describe this situation as a win-win model but consider that in cases where a child-who lacks awareness and discernment and is dependent on care- is turned into a commercial object and money is made through the child, even if by the parent, sharing such intimate moments extensively on social media constitutes an attack on the child’s personal rights[33]. Duygulu states that Instamoms digitize their motherhood identity by transferring their motherhood experiences to the virtual environment[34]. Parsa and Akmeşe regard Instamoms -who identify themselves as Instagram mothers and, starting from pregnancy through childbirth and childcare, promote products of contracted companies by sharing their child-related experiences and motherhood journey, thus generating income -as engaging in exploitation through invasion of privacy and profiting from the child[35]. In our opinion, sharing a child’s most private moments, memories, and personal data – whether through public or private social media accounts- from birth onwards, when the child has not yet developed self-awareness and lacks the capacity to make decisions about their own body and life, should be considered an infringement of personal rights and a violation of the child’s right to privacy. Furthermore, in cases where mothers engage in brand collaborations and advertising agreements through posts involving their children or accounts opened in their children’s names, with the aim of generating commercial profit, such conduct must be regarded as economic exploitation of the child. Indeed, it is evident that a seemingly innocent post can, on social media networks that are far from innocent, cause significant psychological and legal harm to children. It is a known fact that photos of children shared on social media are sometimes manipulated and reposted on accounts created by pedophiles[36]. For instance, a mother who shares a photo of her child in school uniform on social media- believing it is limited to her social circle- ends up not only revealing her child’s name or photo, but also inadvertently disclosing the child’s school and location to the public. Moreover, this post will not remain confined to that limited audience; it may be forwarded, copied, and stored for other purposes. In a publication on child abuse by the Turkish Pedagogy Association, it is stated that most child abuse is committed by individuals close to the family, and therefore, even visuals that parents believe are shared only within their inner circle can pose a risk of exploitation[37]. The World Health Organization (“WHO”) defines child abuse as “all forms of physical and/or emotional ill-treatment, sexual abuse, neglect, and commercial or other exploitationthat result in actual or potential harm to the child’s health, survival, development, or dignity” involving a child under the age of 18[38]. Moreover, such social media posts no longer pertain solely to children’s personal data -they now increasingly encompass health data as well. Today, some Instamoms share their children’s illnesses, health conditions, and even sensitive personal data concerning their physical development with their followers under the guise of “motherhood experience,” effectively “presenting it to the public.” However, the content of such posts may include serious illnesses, surgeries, or chronic conditions. In the future, children conducting a simple internet search on themselves may realize that their personal data was known to strangers long ago. When confronted with the fact that their parents once shared photos and information they would not currently consent to -for commercial gain- they will very likely come to understand that their privacy was violated, their personality rights were infringed, and their right to private life was compromised.
In evaluating the lawfulness of processing children’s personal data on social media, it must first be noted that, as a rule, personal data cannot be processed without the explicit consent of the data subject. However, within the scope of this study, in the case of individuals under the age of 18 who are fully legally incapacitated due to lacking the capacity to distinguish, any explicit consent given by the child for the processing of their personal data shall not be deemed valid. In such cases, the lawfulness of the data processing activity requires the consent of the individuals who hold parental custody. The purpose of this provision is to ensure that fully incapacitated minors, who are not sufficiently aware of the potential risks and consequences of data processing activities, remain under the protection of their families[39]. As a general rule, parents who are under the obligation to protect the child are expected not to abuse the custodial rights granted to them. However, when parents, through their social media posts, cause harm to the child’s interests and rights, the legal framework does not clearly foresee what kind of measures or consequences will follow[40]. In the presence of such a situation, it must be acknowledged that children whose right to privacy has been violated and whose personal data has been processed without their consent should be entitled to assert their rights under data protection legislation against their own families[41].
Especially concerning images from infancy and childhood, it is evident that the children have no—and cannot have—consent, lack the cognitive capacity to understand the nature of the shared content, and considering that these contents are often shared on public accounts with large followings, this situation carries risks that may legally and psychologically jeopardize both the children and their families in the near future[42]. Within this context, the next section will address potential security issues and rights violations that may arise on social media platforms.
As the subject of this study, the full responsibility for sharing children’s personal data on social media platforms lies with the parents who hold custody rights[43]. Undoubtedly, just as families make the best decisions regarding their children’s education and development, they must also exercise the utmost care in protecting their children’s personal data. In this context, while parental consent is required for third parties to process the child’s data, a separate assessment should be made regarding what measures should be taken if the same sharing is done by the parents themselves and results in a violation of the child’s personality rights and the privacy of their private life.
Building on this, the second part of our article series will examine the security issues that may arise on social media platforms and possible solutions.
Prepared by: Adv. Birce Aksakal Yılmazer
[1] According to the Digital 2022 report, "62.5% of the world’s population (approximately 4.95 billion people) are internet users." For more detailed information, seehttps://wearesocial.com/uk/blog/2022/01/digital-2022/ (Accessed: 18.11.2023).
[2] ÇAKIR, M.; Sosyal Medya ve Gösteri, Büyükaslan, A ve Kırık, M. A (Ed.). “Sosyalleşen Birey” Sosyal Medya, p.12, Konya: Çizgi Kitabevi, 2017, 11-68, (Direct citation: GÜNGÖR, ibid., p.31).
[3] GÜNGÖR, Ayten; “Sosyal Medyada Çocuk Hakları İhlali ve İstismarı: Instagram Anneleri”, p.50, Marmara University Institute of Social Sciences, Department of Journalism, General Journalism Science Branch, Master’s Thesis, Istanbul, 2019, Ulusal Tez Merkezi | Anasayfa (yok.gov.tr), (Accessed: 18.11.2023).
[7] DURAL, Mustafa/ ÖĞÜZ, Tufan; Türk Özel Hukuku, Kişiler Hukuku, p.58, Volume II, Filiz Kitabevi, İstanbul,2013.
[8] ERDOĞAN, Canan; “Çocukların Kişisel Verilerinin Korunması (Sosyal Medya Örneği Kapsamında)”, p.2468, D.E.Ü. Faculty of Law Journal, Prof. Dr. Durmuş TEZCAN’a Armağan, Vol.21, Special Issue, 2019, pp. 2445-2467, https://hukuk.deu.edu.tr/wp-content/uploads/2019/09/CANAN-ERDOGAN.pdf, (Accessed: 18.11.2023).
[15] SEROZAN, Rona; “Çocuk Hukuku”, s. 2107, Vedat Kitapçılık, 2nd Edition, İstanbul, 2017), (Direct citation: SERİN, Hüseyin; “Sosyal Medyada Çocuk Hakları İhlalleri: Ebeveynler ve Öğretmenler Farkında mı?, p.9, Eskişehir Osmangazi University Journal of Social Sciences, April 2019, 20 (Special Issue), https://dergipark.org.tr/tr/pub/ogusbd/issue/44338/555107, (Accessed: 18.11.2023).
[16] For detailed information see “United Nations Convention on the Rights of the Child”, https://www.unicef.org/, (Accessed: 18.11.2023).
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