Introduction
A controversy erupted on the video-sharing app TikTok in the summer of 2022, with audiences accusing a parenting influencer of exploiting her toddler daughter by posting compromising videos of her on the platform. The child’s mother, Jacquelyn, who runs the account @wren.eleanor, frequently shared videos of then-two-year-old Wren engaged in everyday activities such as riding a bicycle, going to the park, and eating snacks with the duo’s 17.1 million followers. Jacquelyn also regularly posted paid partnerships with brands such as SHEIN and Kohl’s, and, in lieu of working a regular job, provided for Wren through earnings from online content creation. Followers began expressing suspicion because of TikTok’s “save video” function that allows viewers to save videos made by other accounts to watch again later: “Videos of Wren that could, in the wrong hands, be interpreted as suggestive, such as those depicting her eating pickles or hot dogs, playing with a tampon, or wearing a crop top, were saved tens of thousands of times each, exponentially more than other videos.” Comments on these videos also included discussion about Wren’s appearance, with some comments attributed to accounts run by grown men. Viewers and other creators criticized Jacquelyn for “exploit[ing]” Wren by posting images that could fall into the hands of child predators and continuing to expose her daughter to such an audience to bring in sponsorships and income from TikTok.
This example is at the more extreme margin of a phenomenon known as “sharenting,” the act of parents sharing information about their children on social media. The term encompasses a wide range of activity, from posting a casual photo to detailing the child’s personal information. The quickly evolving nature of social media trends has resulted in a lagging response by lawmakers to address current and potential legal concerns surrounding sharenting. A discourse is developing around the privacy of children whose parents “sharent” as the public becomes more aware of dangers such as identity theft, data harvesting, and emotional harms to children from the public exposure of their personal information and private moments. A parent who generates income from sharenting faces a particular dilemma—the methods for deriving income from social media create an incentive for family-centric accounts to post a large volume of content, including information about their children, while the children stand to incur more risk and harm with increased exposure.
In the ever-changing online landscape, difficulty lies in determining how to guide parents toward making informed decisions when posting about their children and how to sanction parents that go outside the parameters of acceptable practice. Given the common law tradition in the United States of familial autonomy and broad discretion for parents to make decisions for their children, courts are generally unwilling to intrude upon a parent’s judgment. Additionally, the nature of social media production, which occurs primarily in the home with no outsiders involved, makes the prospect of monitoring sharenting activity onerous.
This Note explores balancing the privacy interests of children on the internet with the historic latitude given to parental rights—which serves important functions of its own—and proposes that fiduciary duty principles, akin to those governing corporations, be used to harmonize the inherent conflict of interest between a parent’s financial incentive to sharent on a monetized social media account and the child’s overall well-being. This Note proposes that children, once they reach the age of majority, be given a right of action for breach of fiduciary duty against their parents for harms incurred through egregious forms of sharenting. This right of action would work alongside expert-driven, extralegal social norms and primarily serve as a deterrent, incentivizing parents to prioritize their children’s online privacy, while also preserving enough latitude in parental decision-making to maintain the level of liberty well established in parental rights jurisprudence.
Part I first explores the evolution of sharenting and its intersection with the development of the influencer industry and social media in general, as well as the risks posed by sharenting, particularly monetized sharenting. Part I then discusses how the Supreme Court has approached parental rights throughout the past century, as well as other government responses to the issue of parents’ versus children’s rights. Part II explores potential remedies to the risks presented by sharenting and analyzes the drawbacks associated with each, before outlining the framework of fiduciary duties and how it can be used to accommodate the parent-child relationship within the sharenting context. Part III proposes granting children, upon reaching the age of majority, a right of action for breach of fiduciary duty against their parents, the scope of which should be defined by social consensus and expert guidance.