I originally wrote a version of this article for the December 2015 issue of without prejudice magazine, a legal magazine for which I regularly write. I think this article is of interest to more than just lawyers.
I have noticed an increase in the phenomenon of parents opening a Facebook page for their underage children, and posting cute photos and stories to that page. The idea, I guess, is that it will be like a modern photo album and the child can look back at all the lovely memories from their childhood.
As a lawyer, my gut reaction is that this practice is a bad idea, and in this article I will try to unpack why that is. To be clear, I am talking about the situation where an account has been created in the child’s name that will, in later years, show up when that name is searched as if it is the child’s own account. I am not talking about the situation where you post a picture of your child on your own Facebook account.
As a starting point, we know that people have lost jobs and been held liable for things that they have posted on social media. When Justine Sacco posted her infamous racist Aids tweet before she got on a plane to Cape Town, rumour has it that she had lost her job by the time she got off the plane. And we won’t even talk about Penny Sparrow. We have seen a number of cases go through the South African courts where actions on social media have resulted in job loss (eg Fredericks v Jo Barkett Fashions  1 BALR 28 (CCMA)).
Internationally, we also see that civil claims can arise from actions on social media. In Cairns v Modi  EWHC 756 QB, for example, English courts considered a libel matter former New Zealand cricketer Christopher Cairns sued the former Indian Premier League (IPL) chairperson, Lalit Modi, over a defamatory tweet. In the tweet, the defendant accused Mr Cairns of match-fixing, adding that it was the reason for barring him from the IPL auction list. Mr Cairns sued, claiming the allegations threatened to reduce his cricketing achievements to ‘dust’. The court said that the defendant “singularly failed to provide any reliable evidence” that the applicant was involved in match-fixing or spot-fixing or that there were strong grounds for suspecting this. The applicant was awarded £90 000 in damages.
And in South Africa, in the case of Isparta v Richter 2013 6 SA 529(GNP), for example, the court awarded R40 000 in damages for defamatory statements made on a Facebook posting – payable by both the person who had posted the comment and her husband, whom she had tagged.
So there is no doubt that defamatory and harmful action on Facebook has repercussions in South African Law.
The question then arises as to what can occur if the parents post a picture or story to the child’s “invented” facebook account that will, at a later date, harm the child in some foreseeable or unforeseeable way.
An obvious example would be children shown at political gatherings which 30 years later are repugnant to them and society – think of how you would reconsider your feelings about a person if you found out that in their childhood they had been an AWB poster child. Think about how that would affect the person in question if they were now running for office under the ANC banner. But 30 years ago, your parents could not post your picture to a public, retrievable forum.
It may also be less obvious. Perhaps you take a picture of your child having a ball at the cute petting zoo. In 30 years time sensitivities about captive animals have changed and evolved, and petting zoos are regarded as completely unacceptable. Your child has applied for a senior position in the Help Animals Stay Free organisation, but their prospective employer searches your child’s online presence and comes across this photo. . .
There are three aspects to this. The first is moral – no good parent wants to be the agent of harm in their child’s life. By posting these happy memories under our children’s names, we may be doing just that.
The other issues are legal. I believe that the parent of the future may find themselves liable to their child firstly in delict, and secondly for infringement of personality rights which will more and more come to include ownership of one’s online presence.
I understand the impulse to so easily create a repository of childhood. But maybe it would be wiser to stick to a good old photo album, or a folder on your computer – and leave the decision to your child as to what their public face will look like.