Scope of study & central research questions
Eileen’s paper is about ‘sharenting’ in Kenya, which is the sharing of photographs, videos, and personal information of their children on social media platforms.
The paper examines the legal balance between the parents’ right to freedom of expression captured in Article 33 of the Constitution and the children’s right to digital privacy enshrined in Article 31 of the Constitution.
She looks at laws like the Data Protection Act, the Children Act, and international instruments like the International Covenant on Civil and Political Rights.
Some of the core research questions centered on this intersection are:
- How can minors’ right to privacy be upheld in the context of parents and guardians posting their photographs and videos on social media platforms?
- Is it possible to strike a balance between children’s right to privacy and parents’ right to freedom of expression without hindering a minors’ welfare?
- What lessons can Kenya learn from other jurisdictions like Italy and France regarding regulation and protection of minors’ digital privacy?
Position within existing literature & core thesis
The author positions their paper in relation to other studies as addressing the issue within the Kenyan legal and social context. This novelty is presented by using the interest theory of rights as a key framework. This approach holistically assesses these two rights within the Kenyan context. The interest theory of rights is good because it offers a more robust and pragmatic approach towards assessing legal protections and the justiciability of rights from a legal and moral perspective.
The author’s core thesis is that while sharenting is not inherently unlawful due to the freedom of expression, it poses the risk of the child’s right to privacy being violated and their dignity and long-term best interest being made secondary to said freedom.
Principal arguments & development of arguments
The author mainly adopts the best interest principle, backing it legally with several sections of statute, including Article 31 of the Constitution, Section 2 of the Children Act, and 33 of the Data Protection Act. The rights of parents are also recognised in the authors’ framework through the emphasis on the freedom of expression.
These concepts create a lens that allows the reader to clearly see the potential danger children in the digital space are exposed to but also realise the collision of the parents’ right to expression with the child’s right to privacy.
The author acknowledges the child’s uniquely vulnerable position and their inability to consent or defend their interests, clearly outlining the need for stronger legal protection of children’s rights. The author proposes that the best interest principle be used as a decisive tool. The best interest principle advances the prioritisation of the child’s welfare, development and long-term autonomy. This stance, combined with the fiduciary relationship between parent and child, places a legal obligation on the parent to act carefully and responsibly to protect the welfare of the child.
The argument is supported through sociological studies and comparative analysis with countries like France and Italy, which are forerunners in the legal protection of children online.
This discussion is important because it actualises a problem seen as theoretical in a growing Kenyan industry. This paper impressively gives legal weight to what can easily be seen as a sociological issue and gives a novel perspective in that there is little scholarship on this issue in the Kenyan context.
