CLARE TSIMPOURLA BA, LLB, LLM Internet Law & Policy

University of Strathclyde

July 2015

1 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

TABLE OF CONTENTS

PART I: INTRODUCTION …………………………………………………………………………………………………………………………......... 2

1. PREFACE ……………………………………………………………………………………………………………………….....................................

2

PART II: MINORS IN THE INTERNET AGE …………………………………………………………………………………………………….. 3

2. PARENTAL RESPONSIBILITY ……………………………………………………………………………………………………………………… 3

2.1. Towards the Child …………………………………………………………………………………………………………………………...... 3

2.2. Towards Third Parties ……..……….…………………………………………………………………………………………………………

4

3. EXAMPLES OF PARENTAL LIABILITY……………………………………………………………………………………………………………… 4

3.1. Fault-Based …………………………………………………………………………………………………………………………................... 5

3.2. Strict Liability ……………………………………………………………………………………………………………................................. 6

3.2.1. Vicarious Liability …………………………………………………………………………………………………………………….. 7

3.3. Criminal Liability ………………………….……………………………………………………………………………………………………..

7

PART III: ONLINE WRONGDOING ………………………………………………………………………………………………………………… 9

4. CYBER-BULLYING …………………………………………………………………………………………………………………………................. 9

4.1. Definition …………………………………………………………………………………………………………………………....................... 10

4.2. Harassment …………………………………………………………………………………………………………………………................... 11

4.3. Defamation …………………………………………………………………………………………………………………………................... 11

4.4. Identity Theft …………………………………………………………………………………………………………………………................ 13

4.5. Revenge Porn …………………………………………………………………………………………………………………………............... 15

5. E-COMMERCE …………………………………………………………………………………………………………………………....................... 17

5.1. Online Purchases …………………………………………………………………………………………………………………………........ 18

5.2. Social Media …………………………………………………………………………………………………………………………................. 20

5.2.1. Content …………………………………………………………………………………………………………………………………… 21

5.2.2. Copyright ………………………………………………………………………………………………………………………….......... 23

5.2.3. The Right to Privacy ………………………………………………………………………………………………………............. 25

PART IV: RECOMMENDATIONS ……………………………………………………………………………………………………………………. 27

6. PARENTAL MEDIATION …………………………………………………………………………………………………………………………….. 27

7. GENERAL DATA PROTECTION REGULATION …………………………………………………………………………………….……… 29

8. ADDITIONAL PROVISIONS ……………………………………………………………………………………………………………………….. 30

PART V: CONCLUSIONS …………………………………………………………………………………………………………………………...........

32

APPENDIX I …………………………………………………………………………………………………………………………………………………….. 34

APPENDIX II ……………………………………………………………………………………………………………………………………………………. 35

BIBLIOGRAPHY …………………………………………………………………………………………………………………………............................ 36

2 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

PART I: INTRODUCTION

1. PREFACE

This paper aims at establishing the importance of parental liability in preventing civil and criminal

wrongs committed by minors online. Parental liability goes beyond the general notion of parental

responsibility which usually involves the duty owed to the child to be reared within socially accepted

standards. It is a term that points to an obligation on the part of the parent to assume legal

responsibility towards third parties for the acts of their protégé, especially when these carry

repercussions.

In recent years we have seen an explosion of online wrongdoing involving minors. In most legal

systems within the EU the parents to these minors will not be liable for lack of technological literacy,

not engaging in their internet presence, or not making themselves aware of their actions online.

Unless there is conspiracy, fraud, or some direct criminal action involved, the adult does not bear part

of the punishment. The author believes that this is wrong, both ethically as well as legally, and some

jurisdictions outside the EU seem to agree with this point of view.

We will perform a comparative assessment of EU national laws, going beyond the saturated Anglo-US

comparison, where parental liability is existent and applied to the online wrongdoings of minors, but

ineffective in its current form. We will also turn to other jurisdictions that chose to make such liability

strict and absolute, and observe whether such a potent measure has had any positive results in the

behaviour of minors on the Internet.

The author has chosen to study two areas of Internet law that should be broad enough to encompass

a very large portion of online behaviour: cyberbullying and e-commerce. These are complex terms that

take many forms, beyond what is commonly understood by government officials; it will be argued that

this lack of understanding has had a dire impact in drafting legislation, as well as in matters of

parental guidance.

There is a variety of issues to examine, such as:

(i) The difficulty in identifying children online,

(ii) The licencing of the service and ownership of devices through which minors connect to the

Internet,

(iii) The amount of information parents are willing to disclose about their children online and the

psychology behind it,

(iv) How technology-savvy parents are reasonably expected to be,

(v) Whether surfing the Internet is considered an ‘adult activity’, or at least one that requires

special skill.

Taking the above into account we will subsequently discuss potential recommendations for the

amelioration of legal tendencies within the EU, and propose solutions that could potentially add to the

effectiveness of the forthcoming General Data Protection Regulation1.

1 COM(2012) 11 final 2012/0011 (COD)

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The ultimate goal of the author is for this paper to be an informative and helpful piece of writing,

easily digested by the public at large – they hope they have succeeded.

PART II: MINORS IN THE INTERNET AGE

By their first birthday children, through the use of touch screens on tablets and mobile phones, will be

exposed to online connectivity. By the time they are 8 years old they have watched a video, played a

game, downloaded music, engaged in a virtual world or studied online2. By the age of 10 they are

participating in the social media3. This is an interconnected age that has given birth to an

interconnected generation. Not being part of this generation though, parents might find it hard to

follow.

2. PARENTAL RESPONSIBILITY

Parents and persons in loco parentis (hereafter all referred to as parents) have moral duties and rights

in relation to the minor under their care; they are responsible for their education, well-being, culture,

religious exposure, and upbringing. A minor is of a fragile nature, has a limited capacity, and will find

suing their parent strenuous; a child is usually unable to sue in their name and have to sue through a

‘next friend’4. Furthermore, where a child can sue in person indeed, it is understandably an unduly

burdensome procedure for someone of such a tender age. For these reasons many legal systems

impose the aforementioned moral duties as a legal obligation5, namely parental responsibility.

2.1. Towards the Child

Not all the European Union Member States (hereafter EU MS) have set parental responsibility in stone

in the same manner. In German law it is disguised under ‘parental custody’ which broadly mentions a

duty to care for the minor and their property6. The same applies, for example, to Sweden

7 and

2 Holloway D, Green L, and Livingstone S, Zero to eight. Young children and their internet use (LSE: EU Kids Online 2013) 3 More than half of children use social media by the age of 10: Facebook is most popular site that youngsters join <http://www.dailymail.co.uk/news/article-2552658/More-half-children-use-social-media-age-10-Facebook-popular-site-youngsters-join.html> accessed 17 July 2015 4 See International Encyclopaedia of Comparative Law (Mouton 1976) U80 5 Jonathan Herring, ‘The Welfare Principle and the Rights of Parents’ in Andrew Bainham, Shelley Day Sclater and Martin Richards (eds), What is a Parent: A Socio-Legal Analysis (Hart Publishing 1999) 6 Elterliche Sorge (parental custody) § 1626 (1) German Civil Code; see Nina Dethloff and Dieter Martiny, ‘Parental Responsibilities – National Report: Germany’ <http://ceflonline.net/wp-content/uploads/Germany-Parental-Responsibilities.pdf> accessed 17 July 2015 7 Vårdnad (custody) Ch 6 Swedish Children and Parents Code

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Finland8. Other states call it ‘parental authority

9’. Regardless of the ways it takes shape, the concept of

parental responsibility is present throughout the laws of the EU MS and it is always with regard to the

child.

2.2. Towards Third Parties

Parental responsibility was not devised with third parties in mind. Having established its importance,

we will observe that the duty of care does not extend further than the child; the parent does not owe

a duty to the world at large. The law has tried to compensate by holding the adult legally liable for the

wrongdoings of the minor, but such liability is a very sensitive issue. In common law the parent will

only be primarily liable for the torts of the child if the child was either their agent10

or their

employee11

. Secondary liability attaches if they have been negligent in protecting another from the

physical injury the acts of their dependent caused12

.

Liability can either be strict or fault-based, or in some jurisdictions combine traits of both. We will

examine the role of parental liability in common law, as well as Roman law systems, taking our study

beyond the borders of the EU to geographical areas where it has followed a different direction. We

will then discuss and compare these regional legal tendencies, in order to get a better understanding

of the application of the principle.

3. EXAMPLES OF PARENTAL LIABILITY

Until they reach a certain age, it is widely acknowledged that minors are in no position to fully

appreciate the possible outcomes of their actions. National laws, striving to protect the rights of the

child, have set an ‘age of majority’, which number indicates the full capacity of the young person. But

for little exception, until they have reached this age minors have restricted power to enforce legal

rights, or for legal duties to be enforced against them: for a child to be liable for their own actions

they must be ‘a child of an age at which he is capable of distinguishing between right and wrong’13

.

These rights and duties should be therefore enforced by or against an adult in loco parentis, ie the

8 S 1 Finnish Child Custody and the Right of Access Act; see Kirsti Kurki-Suonio, ‘Parental Responsibilities – National Report: Finland’ <http://ceflonline.net/wp-content/uploads/Finland-Parental-Responsibilities.pdf> accessed 17 July 2015 9 Eg Italian Civil Code Title IX, Book 1; Danish Act No 387 of 14/06/1995; Belgian Civil Code Art 373-375 10 Phillip Morgan, ‘Recasting Vicarious Liability’ (2012) 71 CLJ 3 625-628 11 Roberts Stevens, Torts and Rights (OUP 2009) 258; Limpus v London General Omnibus Company (1862) 1 H & C 526; Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191 12 Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (CUP 2010) 200-203; Jenny Steele, Tort Law: Text, Cases and Materials (3

rd edn, OUP 2014) 123-125

13 See Hardinge Stanley Giffard Earl of Halsbury, James Peter Hymers Baron Mackay of Clashfern, Halsbury’s Laws of England: Children and Young Persons Vol 5 (4th edn, Butterworths 2008) 28

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parent, guardian or person in custody. As reasonable as it sounds, the oddity of this statement is that

it only applies in part to most jurisdictions; parents can enforce the rights, but do not necessarily have

to suffer the wrongs. This is especially true where the liability of the parent is fault-based. As we shall

see in the following section, not only does the child need to be held liable, but the parents need to

have assisted in the wrongdoing with their actions in tandem.

3.1. Fault-based

In most legal systems for a parent to be held liable for the acts of their dependent, fault on their

behalf must be established. The two issues of fault-based liability that will be of particular concern in

our assessment are (a) the willingness of the court to attach fault on the parent when the minor is

absolved, and (b) the party that bears the burden of proof.

Although children could be considered a risk due to their lack of mental capacity and appreciation, the

Law has been slow to intervene with parental authority and the management of that risk14

. Holding

the parent liable concurrently, or in lieu of the child, needs the imposition of special conditions in

order to be fair and reasonable for the sake of the greater good. No one is perfect. A parent cannot

be expected to either follow their dependent every step of the way15

, or alternatively confine them in a

secured space.

(a) Attaching fault on the parent:

As a general rule, in common law a child is liable for the consequences of their wrongdoing, so far as

they have failed to reach the threshold of an ordinary child of the same age16

. If they, however, do not

fulfil the elements of the tort or crime, if they were too young to appreciate the danger, or if they were

unaware of material facts17

, they might not be held liable. Where the minor is not liable because of the

nature of their maturity, there is no secondary liability to be attached to the parents as the chain of

causation breaks. That is everything but satisfying for the plaintiff. If, nonetheless, the parent is held

primarily or personally liable, they will be liable for the result regardless of the traits or the intention of

the child. At the same time this imposes on the parent a greater duty of care vis-á-vis third parties. It

14 Elizabeth G. Porter, ‘Tort Liability in the Age of the Helicopter Parent’ (2012) 3 ALR 64 533; Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (CUP 2010) 197 15 Perry v Harris [2008] EWCA Civ 907 34 16 Owen J in the Australian case of McHale v. Watson (1966) 115 CLR 199, affirmed by Hutchison LJ in Mullin v Richards [1998] 1 W.L.R. 1304: ‘the standard by which his conduct is to be measured is not that to be expected of a reasonable adult but that reasonably to be expected of a child of the same age, intelligence and experience’ 17 Hogan v Gill [1992] Aust Torts Rep 81–182; the child was unaware of the bullet in the firearm’s chamber

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will come apparent in the following chapters that not only is such a level of care desirable with regard

to the use of the Internet by minors, but jurisdictions around the globe are increasingly leaning

towards this idea.

(b) The party that bears the burden of proof:

As Lord Hoffmann observed in Jolley v Sutton18

, children are ingenious and their behaviour is hard to

predict. On the other hand, a parent should be aware of their child’s ingenuity and supervise with

special care. Between a naughty minor and a stressed adult, it is hard to decide where to start putting

the blame. While in some EU jurisdictions there is a presumption of fault that leaves the parent with

the onus of proving they have not been negligent19

, in others it is assumed that the parent is a

responsible one, and it is therefore up to the plaintiff to prove that they have failed to exercise their

duties. Such a presumption might be indicative of the willingness of the national courts to hold the

parent liable for the wrongdoings of their dependent in general.

3.2. Strict Liability

A model of strict parental liability has been adopted by some jurisdictions as a potent measure against

juvenile wrongdoing. This form of liability does not concern itself with the involvement of the parent

in the act, but instead holds the parent responsible for all the acts of their dependent regardless. In

other countries the application of strict liability, although existent, is limited: traditionally strict liability

is imposed on the person who controls a dangerous thing (a car, a toxic substance, a faulty product,

an animal) 20

. As mentioned above, a child might pose a risk to their surroundings due to their limited

capacity. For this reason in some cases the law might consider a child to be a ‘dangerous thing’ under

the control of the adult. Furthermore, a number of jurisdictions have decided that this idea should

have general application: the child is always a risk. In the EU France is a prime example: although the

law offers a rebuttable presumption of liability21

the Court of Cassation has concluded that no fault is

required by the parent and that their duty of care is absolute22

. In the United States (hereafter US)

Louisiana and Hawaii have expressly declared the parent liable for all the wrongdoings of their

dependent in their main statutes23

.

18 Jolley v Sutton LBC [2000] 1 WLR 1082 1093 19 Eg Spanish Civil Code Art 1903 VI; § 832 of the German Civil Code (BGB); Greek Civil Law Art 21 N 2447/1996 20 Cees Van Dam, European Tort Law (2nd edn, OUP 2013) 402-422 21 French Code 1804 Art 1384 ‘La responsabilité ci-dessus a lieu, à moins que les père et mère et les artisans ne prouvent qu'ils n'ont pu empêcher le fait qui donne lieu à cette responsabilité’ (‘The above liability is held, unless the parents .. prove that they could not prevent the act that gives rise to this liability’) 22 Bertrand case Civil Chamber 2, 19 February 1997, 94-21.111 23 Lousiana Civ Code Ann Art 2318; Hawaii Rev Stat §577-3

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3.2.1. Vicarious Liability

Another form of strict liability is vicarious liability. In common law this kind of liability usually attaches

to the employer for the wrongs of his employee (servant)24

, or within a fiduciary relationship to those

of an agent25

. The parent is not vicariously liable for the acts of their child26

, irrespective of their acts

or omissions. The parent needs to have engaged, directly or indirectly, to the wrongdoing. The same

principle applies to Scot law27

.

Vicarious liability, although strict, is a form of secondary liability28

. Ironically, just like there is fault

involved in direct or contributory liability, so is there in vicarious: did the employer exercise all due

caution in hiring the employee? Did they provide adequate training? In all certainty a parent does not

choose their dependents, but maybe ‘training’ is the key word in justifying a possible application of

vicarious liability on parents. In the coming chapters we will examine legal proposals that present this

form of liability, or one that has a striking resemblance, with regard to online delicts committed by

minors.

3.3. Criminal Liability

Liability for parents of criminally liable children naturally carries a heavier onus than that in civil

matters. To take matters to the extreme, in some EU countries such liability is strict29

. In the US it was a

trend to fine the parents of minors that engaged in illegal acts30

came about in the 1970s, but due to

increasing juvenile violence the talks are back on the table31

. The most important defence to criminal

24 Hardinge Stanley Giffard Earl of Halsbury, James Peter Hymers Baron Mackay of Clashfern, Halsbury’s Laws of England Vol 97 (5th edn, Lexis Nexis 2010) 455-456 25 Paula Giliker, Vicarious Liability in Tort: A Comparative Perspective (CUP 2010) 108-110; it is debatable whether liability arising from agency belongs under the heading of ‘vicarious liability’ or is standalone under the law of Agency. 26 Willes J in Moon v Towers 141 E.R. 1306 615: ‘I am of opinion that there was no evidence to go to the jury of any ratification direct or constructive. I am not aware of any such relation between a father and son, though the son be living with his father as a member of his family, as will make the acts of the son more binding upon the father than the acts of any body else’; Carmarthenshire CC v. Lewis [1955] AC 549 566; McHale v. Watson [1964] HCA 64 387 27 The Kilbrandon Report Appendix 'B': Parental Liability in Civil Law for the Wrongful Acts of Minors <http://www.gov.scot/Publications/2003/10/18259/26895> accessed 18 July 2015 28 Halsbury’s Laws (n25) 16-17 29 Eg Spanish Organic Act on Criminal Liability of Minors Art 61.3 5/2000 ‘parents jointly and severally liable for the crimes and misdemeanours of the minor’ 30 Unknown author, ‘Criminal Liability of Parents for Failure to Control Their Children’ (1972) 6 Val UL Rev 332 <http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1784&context=vulr> accessed 18 July 2015; Jennifer M Collins, Ethan J Leib and Dan Markel, ‘Punishing Family Status’, 88 BULR 1327, 1338 31 Jeff D Gorman, ‘City Can't Blame Parents for Children's Crimes’ (2010) Courthouse News Service <http://www.courthousenews.com/2010/11/19/31997.htm> accessed 18 July 2015; Lisa Lockwood, ‘Where

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liability is that of ‘age of infancy’: just like in civil law, a child may not be mature enough to understand

the possible outcome of their actions. This threshold varies between jurisdictions and it is either

imposed by legislation or the opinion of the courts.

One view is that parental liability for infantile delinquency is unduly burdensome for the parent; it

poses an assumption that the parent is solely responsible for the crimes committed by the minor and

that cannot be true32

. Others purport that there is no proper research to support its effectiveness33

.

Whatever the case may be, it is a shield used worldwide against juvenile criminal liability, and most

importantly one which application is also becoming very popular for civil wrongs. It is noteworthy that

the recent proposal for a Directive on the Procedural Safeguards of Children Suspected or Accused in

Criminal Proceedings of the European Parliament (EP) and the Council only endorses civil liability for

the holders of parental responsibility34

.

Are the Parents? Parental Criminal Responsibility for the Acts of Children’ (2000) 30 GGU LR 3 4 <http://digitalcommons.law.ggu.edu/ggulrev/vol30/iss3/4> accessed 18 July 2015 32 Amy L Tomaszewski, ‘From Columbine To Kazaa: Parental Liability In A New World’ (2005) 2 UILLLR 573 33 Eve M Brank, Leroy Scott, ‘Parental Responsibility for Juveniles' Acts’ (2014) The Encyclopaedia of Criminology and Criminal Justice 1-5 34 COM/2013/0822 final - 2013/0408 (COD) 23: ‘Moreover, the parents are also legally responsible and can be held civilly liable for the behaviour of the child.’

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PART III: ONLINE WRONGDOING

Just like the real world, the digital world is full of twists and turns. It is a virtual reality where a digital

entity (holding an internet identity35

) ‘laughs, cries, buys, sells, rents, trusts, moves, learns,

communicates, owns’36

, where the real person spends a big portion of their day. Naturally, in real life

the person also errs, lies, deceives, fights, and gossips. There is no reason why this person would not

commit the same wrongs online that they commit in tangible reality.

The problem with the digital world is that it is fairly new37

. While the laws of the ground had

thousands of years to build and evolve, those of the cloud have only had two decades. Another

problem with this world is that it evolves with spectacular speed, and laws drafted for its particular

areas are soon outdated. This fast pace not only affects the laws, but it also affects the nature of the

wrongdoing: as we shall see below, due to the ubiquitous nature of connectivity nowadays, online

delicts are bigger, meaner and much more destructive than their equivalents in real life. But the

biggest problem in online wrongdoing is the difficulty in proving it: magnitude of global web, remote

servers, internet companies outside the jurisdiction of the court, and unwillingness to co-operate, are

only a few of the pillars in the victim’s way. Applying the mentality of earthly law to that of the cloud

may not be the best solution. There is need for a more proactive, generalised and adaptable set of

laws.

4. Cyberbullying

Cyberbullying is an umbrella under which hide many wrongs. It is a very important concept to us

because these particular wrongs are committed by adults, as much as they are committed by minors.

Cyberbullying takes its name from traditional bullying between school children, albeit less frequent38

but more aggressive39

, complex, impersonal, and with a larger potential audience40

. Online delicts of

35 James E Katz and Ronald E Rice, Social Consequences of Internet Use: Access, Involvement, and Interaction (MIT 2002) 223-224, 281-282 36 Clare Tsimpourla, ‘The Super-Law of the www: a Monster in Embryonic State?’ Cibus {per} Mentis <http://cibusmentis.ie/2012/06/15/the-super-law-of-the-www-a-monster-in-embryonic-state/> accessed 18 July 2015 37 See generally Michael Rustad, Global Internet Law in a Nutshell (2nd edn, West 2013) 38 Peter K Smith, Jess Mahdavi, Manuel Carvalho, Sonja Fisher, Shanette Russell, and Neil Tippett, ‘Cyberbullying: its nature and impact in secondary school pupils’ (2007) Association for Child and Adolescent Mental Health < http://www.gold.ac.uk/media/SmithJCPP.pdf> accessed 18 July 2015 39 ‘Cyber-bullying causes more depression, study finds’ (2010) Reuters <http://www.reuters.com/article/2010/09/21/us-depression-bullying-idUSTRE68K0H320100921> accessed 18 July 2015 40 Magdalena Marczak and Iain Coyne, ‘A Focus on Online Bullying’ in Alison Attril’s (ed) Cyberpsychology (OUP 2015) 149-150

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this nature are vile and the children as victims very fragile: cyberbullying has been the cause of eating

disorders41

, substance abuse, deterioration of mental health42

, and most importantly, suicide43

.

4.1. Definition

Cyberbullying is a broad term that encompasses all aggressive online interactions, regardless of the

age of the participants. Finkelhor44

defined it for the first time as ‘harassment’ within the remits of

online victimisation in 2000, but subsequent definitions have been more successful45

: ‘Cyberbullying is

the name given to any form of aggression perpetrated through electronic media’46

.

The reason why such a vague definition is the most convenient one is the fact that cyberbullying takes

so many distinct forms now, and will surely take even more in the future, that restricting its meaning

would be pointless. It encompasses a number of online misconducts such as harassment, flaming47

,

defamation, trolling48

, impersonation, denigration49

, revenge porn, sexual coercion, outing, and

cyberstalking50

. As we will observe, regional laws have not provided for the penalisation of the whole

spectrum of the above. This is one more example of how targeted legislation lacks efficiency when it

comes to the Internet, and this is exactly for what we will attempt to find a solution. We will prove

below that even the deepest rooted legal remedies are of little use to the minor – when it comes to

children, prevention is our best bet.

41 Ibid 151-152 42 Stephanie Papas, ‘Cyberbullying on Social Media Linked to Teen Depression’ (2015) LiveScience <http://www.livescience.com/51294-cyberbullying-social-media-teen-depression.html> accessed 18 July 2015; Beth J Harpaz, ‘Bullying a Red Flag For Depression’ (2010) Associated Press <http://www.nbcnews.com/id/36688350/ns/health-childrens_health/t/bullying-red-flag-depression/> accessed 18 July 2015 43 Sameer Hinduja and Justin W Patchin, ‘Bullying, Cyberbullying, and Suicide’ (2010) Archives of Suicide Research, 14(3), 206-221 < http://cyberbullying.us/publications/page/3/> accessed 18 July 2015 44 David Finkelhor, Kimberly J Mitchell and Janis Wolak, ‘Online Victimization: A Report on the Nation’s Youth’ (2000) Crimes Against Children Research Centre 9 < http://www.unh.edu/ccrc/pdf/jvq/CV38.pdf> accessed 18/07/2015 45

Cyberpsychology (n40) 147 46 Ian Rivers and Nathalie Noret, ‘‘I h 8 u’: Findings from a five-year study of text and e-mail bullying’ (2010) British Educational Research Journal, 36(4), 643-671 47 Bernadette Schell and Clemens Martin, Webster's New World Hacker Dictionary (Wiley 2006) 329: ‘Abusive language that occurs in online communications and violates online etiquette’ 48 Collins English Dictionary: ‘troll: a person who submits deliberately inflammatory articles to an internet discussion’ < www.collinsdictionary.com/dictionary/english/troll> accessed 20/07/20015 49 Bullying in a Cyber World (RIC Publications 2010) 74: ‘A form of cyberbullying whereby a person posts, emails or texts information (including digitally altered photos) about another person or other people that is untrue or derogatory’ 50

Patricia Agatston, Robin Kowalski, and Susan Limber, ‘Youth Views on Cyberbullying’ in Justin W Patchin and Sameer Hinduja’s (eds) Cyberbullying Prevention and Response: Expert Perspectives (Routlege 2012) 60-61; Cyberpsychology (n40) 146

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4.2. Harassment

In the previous section we referred to online harassment and noted that it was the first accepted form

of cyberbullying51

. Until this day lawyers still argue whether existing laws for harassment are

appropriate for combatting this phenomenon52

. Even if we accept the usefulness of the laws of

harassment for public flaming and trolling where proof is online for the world to see, they do very

little to safeguard the rights of minors from forms of stealth cyberbullying. It could be very

problematic.

First and foremost, the minor needs to admit to being harassed. Research has shown that minors are

very reluctant to reveal the facts of their victimisation to their parents53

. Secondly, they need to have

gathered enough evidence, as harassment is a wrong that requires at least some perpetuity54

. The

child might not be aware of ways to keep copies of evidence in electronic form. Alternatively they

might have erased the proof either because it is upsetting, or because they felt no need to accumulate

it. Thirdly, cyberbullying does not always include the victim, it may well be a private image or video

that is widely disseminated and commented upon by strangers; in some national laws harassment

needs to be direct to take effect55

. Where the harassment is private, there are always jurisdictional

matters to consider for applications of discovery. As we will see below, foreign service providers can

and have resisted such applications56

. Ultimately, the parents need to be willing to sue the other party:

they need to have the time, the means, and the resources in order to take the course of litigation.

From the above it shows that when the only remedy left to the minor is a claim of harassment, their

chances of vindication are low.

4.3. Defamation

Defamation is the communication or publication of a false statement concerning a person to another.

This is done either privately (communication to one person) or publicly (communication to many).

Penalties for defamation can be found in either criminal or civil law in EU national legal systems

51

Cyberpsychology (n40) 52 ‘Submissions of Digital Rights Ireland to Issues Paper on Cyber-crime Affecting Personal Safety, Privacy and Reputation Including Cyber-bullying’ (2014) Digital Rights Ireland < https://www.digitalrights.ie/dri/wp-content/uploads/2015/03/DRI-Submissions-to-LRC-re-cyberbullying.pdf> accessed 18 July 2015 53 Robin M Kowalski, Susan P Limber, and Patricia W Agatston, Cyberbullying: Bullying in the Digital Age (2nd edn, Wiley-Blackwell 2012) 116 54 Eg Canadian Criminal Code RSC 1985, c C-46 s264(2)(a) and (b): ’repeatedly following’ and ‘repeatedly communicating’; French Criminal Code s3 Art 222-33-2: ‘par des propos ou comportements répétés’ (‘with repeated means or behaviour’) (translation by the author); Protection from Harassment Act 1997 s8 (Scotland): ‘conduct on at least two occasions’; New Zealand’s Harassment Act 1997 s3: ‘a pattern of behaviour’ 55

Eg Ireland: Clare Tsimpourla, ‘Cyberbullying & Harassment: A Recipe for Disaster’ (2014) Cibus {per} Mentis <http://cibusmentis.ie/2014/03/24/cyberbullying-harassment-a-recipe-for-disaster/> accessed 26 July 2015 56 Irish Facebook Case (n74)

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(Appendix I). It can be argued that EU jurisdictions with no sui generis laws on cyberbullying have

covered ground for most possible occurrences of the phenomenon with their defamation statutes,

especially since they primarily carry criminal liability. We will argue that if it were so, countries like

Finland would have been cyberbullying-free.

Defamation forms part of the criminal law in Finland and is used as a legal remedy against

cyberbullying, breach thereof sanctions a prison sentence of up to two years57

. As any crime, the injury

is assumed to be against the person and no pecuniary loss is required to trigger the provision. Similar

to defamation, ‘dissemination of information violating personal privacy’58

is under the same heading

of Chapter 24: ‘Offences against privacy, public peace and personal reputation’, and would also cover

for other instances of cyberbullying, such as outing and revenge porn. Surprisingly, although it would

appear Finnish legislation covers for most aspects of cyberbullying, it has not however solved

problems with adolescent cyberbullying as, just like with harassment, the minor has a lot of

obstacles to overcome before reaching the final steps of justice.

We have chosen Finland as a base for our argument because (a) it forms part of the EU and shares

the European culture and, (b) its government quickly realised that minors do not respond to legal

penalties, and therefore a more proactive approach needs to be taken; that approach is called

KiVA59. KiVA is a school-centred project developed by the University of Turku in 2006. The most

important ingredient to cyberbullying has been found to be what is called the ‘bystanders’60

. The

bystanders are third parties that witness the cyberbullying, regardless whether they act on it or not,

and either encourage it or demonstrate their disapproval. They could easily be the third parties that

receive a defamatory communication. KiVA targets those bystanders by promoting and instructing

positive behaviour. The bully does not get the attention they seek, rendering their tactics fruitless.

The programme has proved to be very effective, allowing it to spread to the educational systems of

other European countries61.

57 Finnish Criminal Code Ch24 ss9-10 < http://www.finlex.fi/en/laki/kaannokset/1889/en18890039.pdf> accessed 20 July 2015 58 Ibid s8 59 KiVA Official Website < http://www.kivaprogram.net/> accessed on 20 July 2015 60 Nicholas Brody and Anita L Vangelisti, ‘Bystander Intervention in Cyberbullying’ (2015) Communication Monographs < http://www.tandfonline.com/doi/pdf/10.1080/03637751.2015.1044256> accessed 20 July 2015; ‘The Bystander Effect: Why so Important?’ WebWise.ie < http://www.webwise.ie/parents/the-bystander-effect-why-so-important/> accessed 20 July 2015 61 Evidence of Effectiveness in Finland and Elsewhere < http://www.kivaprogram.net/is-kiva-effective> accessed 20 July 2015; Anne Williford, L Christian Elledge, Aaron J Boulton, Kathryn J DePaolis, Todd D Little and Christina Salmivalli, ‘Effects of the KiVa Antibullying Program on Cyberbullying and Cybervictimization Frequency Among Finnish Youth’ (2013) 42 JCCAP 6 820 <http://www.researchgate.net/publication/236673403_Effects_of_the_KiVa_Antibullying_Program_on_Cyberbullying_and_Cybervictimization_Frequency_Among_Finnish_Youth> accessed 20 July 2015

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Another example of a European country with strict anti-defamation laws is Germany. Chapter 14 of

the German Criminal Code62 imposes up to a five-year imprisonment for intentional defamation, and

the conviction of the author of an insult may be ‘publicly announced’63. Just like Finland, the

penalties alone have not stopped cyberbullying numbers from their continuous rise64. The same

applies to Italy65 and Spain66, among others.

4.4. Identity Theft

Denigration, impersonation and trickery are material elements of identity theft. Bullies assume the

identities of their victims either through pretend play or by gaining access to their victim’s social

media account(s), and publish content pretending to be that of the victim. Harassment and

defamation do not easily satisfy the prerequisites for identity theft as the original author usually

appears to be the victim themselves67

. It constitutes fraud, although the motive behind it is not

financial68

; it is social. The limited control parents hold over the amount of information their

dependent shares on the Internet, in addition to the gullible nature of the child make the perpetrator’s

work a walk in the park. The Swedish Data Inspectors’ report in 2011 revealed a considerable problem

62 German Criminal Code § 185-200 < http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1693> accessed 20 July 2015 63 Ibid § 200 64 Rechtsanwalt Christian Solmecke, ‘School children suffer increasingly from cyber bullying’ (2013) Wilde Beuger Solmecke < https://www.wbs-law.de/eng/internet-law/school-children-suffer-increasingly-from-cyber-bullying-40436/> accessed 20 July 2015; Astrid Herbold, ‘Cyberbullying: When Social Media Become a Pillory’ (2014) Goethe Institut < https://www.goethe.de/en/kul/ges/20456247.html> accessed 20 July 2015 65 Italian Penal Code Arts 594-595 have done nothing for teen suicide and the explosion of cyberbullying. See eg Giulia Mura, Vincenza Bonsignore and Davide Diamantini, ‘Cyberbullying Among Italian Students’ (2010) Academia.edu < https://www.academia.edu/1298053/Cyberbullying_Among_Italian_Students> accessed 20 July 2015; BBC News: Cyberbullying suicide: Italy shocked by Amnesia Ask.fm case <http://www.bbc.com/news/world-europe-26151425> accessed 20 July 2015 66 Spanish Penal Code s172(3) ‘Crimes against one’s good name’ and s173 ‘Degrading treatment’ (translation by author). See Cristina del Barrio, María-José de Dios, Ignacio Montero, Elena Martín, Esperanza Ochaíta, and Ángeles Espinoza, ‘Cyberbullying among Spanish secondary school students: a national survey’ (2014) 15

th

European Conference of Developmental Psychology < http://www.researchgate.net/publication/264416707_Cyberbullying_among_Spanish_secondary_school_students_a_national_survey> accessed 20 July 2015; Elizabeth Armstrong Moore, ‘Study: 1 in 4 Spanish teens cyberbullied this year’ (2010) Cnet < http://www.cnet.com/news/study-1-in-4-spanish-teens-cyberbullied-this-year/> accessed 20 July 2015 67 Legal action needs to be taken for further discovery against the service provider(s), which if out of the jurisdiction do not have an obligation to comply 68 Fraud is a wrong of which the mens rea is financial gain: Neil Robinson, Hans Graux, Davide Maria Parrilli, Lisa Klautzer and Lorenzo Valeri, ‘Comparative Study on Legislative and Non Legislative Measures to Combat Identity Theft and Identity Related Crime: Final Report’ (2011) Rand Europe for DG Home Affairs 86 <http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/organized-crime-and-human-trafficking/cybercrime/docs/rand_study_tr-982-ec_en.pdf> accessed 20 July 2015

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with ‘Facerape’ for ages 15-18, whereby the bully intrudes the Facebook account of the victim and

publishes posts pretending to be them69

.

Although real identity theft or fraud is a crime with precise corresponding national laws70

,

impersonation of a digital identity that is not legally given to a person is not; it is a grey area usually

covered by numerous provisions which does not allow for legal certainty (APPENDIX II). Sometimes it

is left entirely to the administration of the provider, especially in economically weaker MS. In Poland

complaints for the misappropriation of online identities are filed at the Data Protection Ombudsman,

who in turn forwards them to the authorities – without any duty to track their outcome71

. So great was

their inaction with social media platforms (eg Nasza Klasa – the Polish Facebook counterpart), that

citizens felt they had to take matters in their own hands and sue the platforms directly72

. Even at the

court’s request a platform was unable to provide the plaintiff with anything but the registration

information of the user that impersonated him, as it informed the court that they do not collect

personal data. Data collection and retention is dependent on the laws of the jurisdiction the service

provider is domiciled. Furthermore, when in a different jurisdiction the provider does not necessarily

have to comply with foreign court orders73

.

All online users have a unique username that represents their account, but it is not unique throughout

the web. If the bully assumes the username the victim has in one service and uses it in another

pretending to be them, it will be very hard to prove. It should be marked that not all services ask for

the same verification credentials: some may ask for a phone number, while others may only ask for an

email – either way mobile devices change hands with relative ease among teenagers74

making false

verification easier than one might originally assume. Likewise, if the bully links the victim’s name to a

new username/account, the service provider has no way of knowing their intention to harm another

user – and it is very likely that they will be hesitant to act against them75

. Additionally, there is

69 Ungdomar och Integritet 2011 < www.datainspektionen.se/Documents/rapport-ungdom-2011.pdf> accessed 20 July 2015 70 For case law and application of national laws see Rand Europe for DG Home Affairs (n67) 141-582 71

Rand Europe for DG Home Affairs (n67) 445 72 Tomasz Rychlicki, ‘Personal interest, case I C 144/10’ < http://rychlicki.net/en/2010/08/15/5445/> accessed 20 July 2015 73 Christopher Kuner, ‘A “Super-right” to Data Protection? The Irish Facebook Case & the Future of EU Data Transfer Regulation’ (2014) LSE Media Policy Project Blog <http://blogs.lse.ac.uk/mediapolicyproject/2014/06/24/a-super-right-to-data-protection-the-irish-facebook-case-the-future-of-eu-data-transfer-regulation/> accessed 20 July 2015 74 Leslie Haddon and Jane Vincent, ‘UK Children’s Experience of Smartphones and Tablets: Perspectives from Children , Parents and Teachers’ (2015) Net Children Go Mobile UK Qualitative Report s36 <http://eprints.lse.ac.uk/62125/1/UK%20Childern%20mobile%20experience_author.pdf> accessed 20 July 2015 75 Zach Miners, ‘Facebook wants to get better at detecting fake profiles’ (2015) PC World <http://www.pcworld.com/article/2893192/facebook-wants-to-get-better-at-detecting-fake-profiles.html>

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difficulty is proving fraud as with bullying the goal is the damage to the reputation of the victim, with

no direct pecuniary loss.

To combat cybercrime, including identity theft, the EP and the Council enacted the Directive on

Attacks against Information Systems76

. Section 14 of the preamble suggests that all the MS put

‘effective measures’ in place for identity theft and identity-related offences. At the same time it

mentions the possibility of a ‘comprehensive horizontal Union instrument’. Since most EU MS do not

have laws specifically tailored for identity theft or impersonation (APPENDIX II), the latter would be

greatly desirable.

In 2001 thirty one countries gathered in Budapest under the auspices of the Council of Europe to sign

the Convention on Cybercrime77

. Until this day the Convention has 47 worldwide

accessions/ratifications by both members and non-members of the Council78

. After the

commercialisation of the Internet it soon became clear to national governments that penalisation of

online crime was lacking from the foreground. The Convention was signed as a response to that need:

an instrument that imposes measures carrying criminal liability for severe online wrongdoing such as

child porn, breach of privacy and cyber fraud, while at the same time harmonises international co-

operation. The Convention does not, however, have provisions unique to identity theft. It contains

articles that may assist with the phases identity theft entails (obtaining, possessing and using

another’s identity through digital means79

), but it does not declare the act itself a crime. It would seem

that it is primarily concerned with various elements that may, or may not, form part of a particular

occurrence of identity theft. Unfortunate as it may be, for now national laws, in absence of a Union

framework, whether regulated by the Convention or not, in their majority appear to be inadequate.

4.5. Revenge Porn

Sexting and sexually explicit images are not uncommon between teenagers. While that is done in

private, in all probability everyone will get out of it unharmed. The problem starts when either one

accessed 20 July 2015; Twitter parody account policy <https://support.twitter.com/articles/106373> accessed 20 July 2015 76 Directive 2013/40/EU 77 Convention on Cybercrime <http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm> accessed 24 July 2015 78 Convention on Cybercrime CETS No.: 185 <http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&CL=ENG> accessed 24 July 2015 79

T-CY Guidance Note #4 Identity theft and phishing in relation to fraud (adopted June 2013) <http://www.coe.int/t/dghl/cooperation/economiccrime/Source/Cybercrime/TCY/Guidance_Notes/T-CY%282013%298REV_GN4_id_theft_V10adopted.pdf> accessed 24 July 2015

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decides to get even after a breakup by going public, or when the content of the exchange purposely

moves beyond the eyes of the intended receiver.

Sixteen out of the fifty US states have laws that apply to revenge porn80

. Unfortunately, none of these

laws have a clause that applies to minors; revenge porn portraying a minor, whether solicited by

another minor or not, constitutes child pornography, and the parents are criminally liable. Criminal

liability also attaches to the victim and their parents, and they can be charged for creation and

distribution of child pornography81

.

In the EU, Article 8 of the Directive on Combating the Sexual Abuse and Sexual Exploitation of

Children and Child Pornography82

partly prevents the above oddity by giving the MS the option not to

punish the parties if they were close in age and the act was consensual. Likewise, England and Wales

offers a defence for persons that are either married or in an ‘enduring family relationship’83

. This is far

from sufficient; it goes without saying that the odds of two teenagers belonging in either category are

slim. Section 4 of the Irish Child Trafficking and Pornography Act 1998 holds the parents whose child

has appeared in ‘child pornography’ strictly liable, and imposes a fine up to £25,000 and up to 14

years imprisonment, regardless of the purpose of the appearance. There is however no express

mention of the parents of the perpetrator in the statute. So far there is no law able to punish an act of

revenge porn in Ireland84

, as such, the only law applicable is that of child pornography where the

parents of the victim are primarily at fault.

Other than France85

and the UK (England and Wales)86

other MS have not drafted laws that can be

directly applied to revenge porn, but instead they have laws that might be applied generally, such as

the breach of the right to privacy87

, inducement to suicide88

, copyright infringement89

, harassment

(where there is more than two reproductions)90

, blackmail91

, or more interestingly, ‘the right to be

80 States with Revenge Porn Criminal Laws < http://www.cagoldberglaw.com/states-with-revenge-porn-laws/> accessed 20 July 2015 81 Katie Rucke, ‘Increase in Sexting, Sexual Videos Leaves Minors Vulnerable to Revenge Porn’, 16 Washington Internet Daily 48 1-3 82

Directive 2011/92/EU of the European Parliament and of the Council 83 Sexual Offences Act 2003 s45(3) 84 Irish Law Reform Commission, ‘Issues Paper on Cyber-crime affecting personal safety, privacy and reputation including cyber-bullying’ (2014) 11 <http://www.lawreform.ie/_fileupload/Issues%20Papers/ip6Cybercrime.pdf> accessed 20 July 2015; Christina Finn, ‘‘Revenge porn’ may not be punishable through Irish law’, TheJournal.ie <http://www.thejournal.ie/revenge-porn-harassment-laws-1787949-Nov2014/> accessed 20 July 2015 85 French Penal Code Art 226-1 86 Protection of Children Act 1978 s1; S33 of Criminal Justice and Court Act 2015 87 German Criminal Code §201a; Spanish Criminal Code Art 197; 88

Spanish Criminal Code Art 143 89 Belgian Law on Copyright and Neighbouring Rights 1994, as amended, Art80; German Copyright Law §22 90 See 5.1. Harassment, p12 supra

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forgotten’92

. It is a very awkward balance but what is certain is that where two minors and sexual

depiction mix, the outcome is troublesome. However, Article 8 of the Directive would provide for

some legal certainty if followed, at least with regard to the victim.

From the above it is clear that there is no single law pertaining to cyberbullying specifically. There is

instead an amalgamation of common law principles, legislation and Directives that set the tone within

the EU. The efficacy of this status quo is apparently very limited, with victims not having any clarity as

to which route to follow – and what their place during legal procedures will be. Once more the law of

the land fails to catch up with the cloud, but where preventative solutions have been implemented the

results are very promising. No matter how multifaceted the concept of cyberbullying is, we can safely

make the assumption that prevention is the key. Instead of ex post facto penalties, we need laws that

work towards that prevention.

5. E-COMMERCE

Nowadays e-commerce is a notion that goes beyond mere e-tail; it is concerned with any kind of

application, embedded or standalone, which offers a product or service. This includes free services

such as email, social networks, games, search facilities, financial transactions, media sharing, mobile

and telecommunication applications93

. It is so deeply interweaved to the basic functions of the web

that it is virtually impossible to avoid.

From small children to teenagers, minors are exposed to e-commerce daily through computers and

mobile devices. Although it is accustomed for free software that is intended for computer use to be

limited (eg shareware), it is the trend on mobile now devices for the creator of the operating system to

offer a download portal whereby the user can download applications (apps) for free. Furthermore,

every time an app is downloaded, albeit from the same portal and intended only for the particular

operating system, the author or company behind it has a unique set of terms and conditions to which

the user agrees with every download.

91 Polish Penal Code Art 191a 92 The right to ask Google Europe to remove results that refer to one personally from its indexing services. Factsheet on the “Right to Be Forgotten” ruling (C-131/12) < http://ec.europa.eu/justice/data-protection/files/factsheets/factsheet_data_protection_en.pdf> accessed 20 July 2015 93 See generally Tracy Tuten, Enterprise 2.0: How Technology, eCommerce, and Web 2.0 Are Transforming Business Virtually (Praeger 2010)

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Other than the free apps offered on mobile devices, free services are offered in abundance online.

Terms and conditions take effect with every internet transaction, including registering for free services:

Yahoo, Google, Facebook, Microsoft and other companies offer a variety of modalities (email, online

photo albums, document storage, chat, search etc.) for which there is no immediate requirement for

pecuniary compensation.

The capacity of the minor to appreciate these terms and conditions, or to contract altogether, is up for

discussion below. We will see that the prevalence of soft law and self-regulation over hard law in most

regions has had detrimental effects, both for the minor, as well as for smaller businesses. We will also

consider matters of privacy and their negative role in a child’s online experience. Where the situation

is so fluid, something has got to give.

5.1. Online Purchases

The general rule is that minors are not capable of contracting until such time they have reached the

age of majority. That age is defined by national law94

including small exceptions, usually with regard to

‘necessaries’, ie goods and services essential for their everyday needs, depending on their current

lifestyle95

.

The question that needs to be answered is ‘what happens when a minor incapable of contracting uses

online services that require such ability?’

A quick answer would be that the contract is voidable96

. This leaves the other party with whom the

minor has contracted in limbo. Some jurisdictions provide for mitigating factors, such as enforcing the

contract where there is deceit on the part of the minor regarding their age97

, giving smaller children

the right to form a contract (albeit with limitations)98

, or implying the parental consent99

. But it all

becomes redundant in the virtual world. On the Internet parties from the four corners of the Earth

enter in blind agreements every day; blind, both with respect to the identity of the parties, as well as

their terms and conditions. We will explore both.

94 Mathias Klang and Andrew Murray, Human Rights in the Digital Age (Cavendish 2005) 34 95 Richard Stone, The Modern Law of Contract (Cavendish 2005) 18; JC Montanier, 'Les actes de la vie courante en matière d'incapacité' (1982) IJCP 3076 ; Iñigo A Navarro Mendizábal, ‘La Protección del Consumidor Menor de Edad’ in Isabel Lázaro González and Ignacio V Mayoral Narros (eds) Infancia, Publicidad y Consumo (Universidad Pontífica Camillas 2005) 140-141 96 Eg Italian Civil Code s1425; French Civil Code Art 1108; German Civil Code (BGB) §107; Irish case Keays v Great Southern Railways Co [1941] I.R. 534; Dutch Civil Law Art 3:32 97

Italian Civil Code s1426 98 German Civil Code (BGB) § 104 at 7 years of age 99 Dutch Civil Code Art 1:234 (3); German Civil Code (BGB) § 110

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First and foremost, it would be very counter-productive for a business to demand the manual

verification of all of the users who sign up to its services. Even with the use of cookies whereby the

website can automatically ‘read’ and assess the marketing trail the potential new member has left

behind (the accumulation of data can give instant indications as to the traits of the user in question),

there can be no certainty that this is the same person who is now applying to subscribe – it might be

the older brother, or any adult that has taken over the device. Secondly, legal matters regarding e-

commerce have become so complex due to all the difficulty in ascertaining the rights and duties of

consumers, jurisdiction, and marketing implications, that terms and conditions even where prominent

are next to impossible to read100

. If an adult clicks on ‘accept’ with half a heart, the minor will not give

it another thought: they will agree in good faith, unable to understand what they are agreeing to101

.

The outcome of the above conundrum is self-regulation102

; each seller has their own policy on

contract execution and refunds, occasionally restricted by the laws of the jurisdiction of their domicile.

This leaves little to be desired with regard to legal certainty.

In the virtual world the parent owes a double duty: (a) to their child, and (b) to third parties with whom

the child might have, willingly or unwillingly, entered into a contract. Like all other e-commerce

websites, social media providers have Terms and Conditions adapted for persons over a certain age103

.

Other than offering their own services or digital products for sale, they might also embed

‘marketplaces’ in their content: independent e-tailers that conduct business through the facility

(Facebook apps, LINE stickers, Play Store etc). It is not uncommon for a parent to find themselves with

pecuniary charges they don’t recognise, especially one coming from a social media portal – quizzes,

games, and sticker add-ons are particularly attractive to minors. The ease with which online purchases

are conducted today and the ability to store financial credentials online for all types of purchases

(mobile apps, social media apps, account linking, electronic wallets etc) increase the chances that the

minor will eventually gain access to, and might eventually use that information to effect a purchase.

100 Daniel Miller, ‘'I feel like I'm giving over my life': What happens when consumers actually READ those endless terms and conditions’ (2015) Mail Online < http://www.dailymail.co.uk/news/article-2931383/I-feel-like-m-giving-life-happens-consumers-actually-READ-endless-terms-conditions.html> accessed 23 July 2015; Robert Glancy, ‘Will you read this article about terms and conditions? You really should do’ (2014) The Guardian < http://www.theguardian.com/commentisfree/2014/apr/24/terms-and-conditions-online-small-print-information> accessed 23 July 2015s 101 Ellen Wauters, Eva Lievens, and Peggy Valcke, ‘D1.2.4: A legal analysis of Terms of Use of Social Networking Sites, including a practical legal guide for users: ‘Rights & obligations in a social media environment ’’ (2013) EMSOC < http://emsoc.be/5355-d1-2-4-a-legal-analysis-of-terms-of-use-of-social-networking-sites-including-a-practical-legal-guide-for-users-rights-obligations-in-a-social-media-environment/> accessed 23 July 2015 102 Corien Prins, ‘Regulating Electronic Commerce in the Netherlands’ (2002) 6 ELJCOML 4 (2002) <http://www.ejcl.org/64/art64-28.html>; David Bach, ‘The New Economy: Transatlantic Policy Comparison: Industry Self-Regulation in the E-conomy’ (2001) Berkeley Roundtable on the International Economy (BRIE) <http://www.brie.berkeley.edu/publications/GMFDB.pdf> accessed 23 July 2015 103 See 6.2. Social Media

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When a minor goes through with an unauthorised purchase on a local website, or one whose

indication (eg address of contact or national TLD) refers to the country they conducted the purchase

from, things are more or less straightforward – national contract law applies. Where a minor has

concluded a contract with an entity outside the jurisdiction, however, matters are more complicated:

the child has engaged in a contract with an entity whose regional contract laws set in the terms and

conditions apply in relation to the purchase, although the seller’s terms and conditions may not apply

altogether if the child is too immature to appreciate them. Additionally, policies for electronic

payments tend to favour the authorised buyer. In 2014 the US Federal Trade Commission obliged

Apple to reimburse parents whose children performed unauthorised social media purchases ‘at least

$32.5 Million’104

. Worldwide, many payment instruments such as credit and debit cards have ‘zero-

liability’105

policies for unauthorised transactions (ie transactions lacking the consent of the instrument

holder). The problem is exacerbated when that purchase is made for tangible goods, which might also

include delivery or duty charges.

5.2. Social Media

Along with access to the Internet from mobile devices came the explosion of social networks. Almost

every user-generating web site belongs in this category: Twitter, Instagram, Tumblr, Facebook,

Google+, Academia.edu, LinkedIn; the list is endless. These web sites serve various purposes and are

not necessarily built solely to enhance daily communication, as an example DevianArt promotes

independent art work, LinkedIn assists with career building, and so on. They provide a seemingly free

service, sometimes in conjunction with other premium packages, and they mostly make a profit

through advertising and marketing. For a free service no payment is required, as such a new member

will be primarily asked for information related to their communication services such as their email or

phone number, possibly along with their geographical location, gender, and age. As discussed above,

there is no guarantee that the user will insert values that correspond to reality.

Minors tend to lie about their age on social media106

. The main reason why they do so is the

requirement of social networks that members have completed a particular number of years,

104 Apple Inc. Will Provide Full Consumer Refunds of At Least $32.5 Million to Settle FTC Complaint It Charged for Kids’ In-App Purchases Without Parental Consent < https://www.ftc.gov/news-events/press-releases/2014/01/apple-inc-will-provide-full-consumer-refunds-least-325-million> accessed 24 July 2015 105 Anna Creti and Marianne Verdier, ‘Fraud, Investments and Liability Regimes in Payment Platforms’ (2011) Working Paper Series No 1390 – European Central Bank <https://www.ecb.europa.eu/pub/pdf/scpwps/ecbwp1390.pdf> accessed 24 July 2015 by; John Kiernan, ‘2015 Fraud Liability Study: Which Cards Protect You Best?’ (2015) CardHub <http://www.cardhub.com/edu/fraud-liability-study/> accessed 24 July 2015 106 Sonia Livingstone, ‘Current trends - framing the challenges: The latest insights from research’ (2014) EU Kids Online - presentation to the CEO Coalition: ‘Four in 10 give a false age on SNS’ 5

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depending on regional laws. As a popular example, Facebook only accepts users that are over 13 years

old, the age limit set by the US Children’s Online Privacy Protection Act (COPPA)107

with regard to the

collection of personal information by minors. To make matters worse, parents knowingly allow their

children to lie, assuming that this will assist with their parental control108

. This phenomenon has

immediate implications for the children, the e-commerce providers, as well as the adults they engage

with online.

5.2.1. Content

A social networking site or application expecting an audience of a certain age will adjust its content to

that audience. That content is primarily user-generated, but it might also come from advertisements

and announcements. A child from a restricted age group that pretends to be older will be largely

exposed to unsuitable media, ie images, video and text they are too immature to comprehend. More

often than not, unless the user has specifically requested not to be targeted by marketing

companies109

, advertising on social media is targeted and customised to the user’s traits – one of

them being their stated age. This poses legal problems for all the stakeholders and is the cause of an

ongoing debate110

.

Advertising is an especially fine matter when it comes to minors. Each jurisdiction has enacted laws

regarding advertising and what is permissible for each audience to be exposed to111

. By lying about

their age children might get exposed to material which is illegal for their age group. In 2015 the State

of California decided to put a stop to this trend by enacting a regulation that makes the advertising of

<http://www.lse.ac.uk/media@lse/research/EUKidsOnline/Presentations/CEOCoalitionJune2014.pdf> accessed 24 July 2015 107 15 U.S. Code § 6501-6506 < https://www.law.cornell.edu/uscode/text/15/6501> accessed 24 July 2015 108 Danah Boyd, Eszter Hargittai, Jason Schultz, and John Palfrey, ‘Why parents help their children lie to Facebook about age: Unintended consequences of the ‘Children’s Online Privacy Protection Act’ (2011) 16 First Monday 11 < http://firstmonday.org/ojs/index.php/fm/article/view/3850/3075> accessed 24 July 2015; Larry Magid, ‘Survey: Many parents help kids lie to get on Facebook’ (2011) CNet <http://www.cnet.com/news/survey-many-parents-help-kids-lie-to-get-on-facebook/> accessed 24 July 2015 109 There are several ways to opt-out of targeted advertising such as Firefox browser’s settings ‘Do Not Track’; individual social media settings: eg Facebook < https://www.facebook.com/about/basics/what-you-see/ads/>; Google < https://support.google.com/ads/answer/2662922?hl=en>; Voluntary Consumer Opt-Out mechanisms: eg the Network Advertising Initiative < http://www.networkadvertising.org/choices/> accessed 24 July 2015 110 Children and advertising on social media websites (2013) ASA Compliance Survey 12-13 <https://www.asa.org.uk/News-resources/~/media/Files/ASA/Reports/ASA%20Compliance%20Survey_Children%20and%20advertising%20on%20social%20media%20websites.ashx> accessed 24 July 2015 111 See generally Mary Alice Shaver and Soontae An, The Global Advertising Regulation Handbook (2014 ME Sharpe – Library of Congress)

22 Around the World in 80 Seconds:

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certain product categories to persons less than 18 years of age illegal in its entirety112

. It is doubtful

whether such an absolute prohibition will solve the problem; there is no guarantee that children lying

about their age online did not pretend to be adults during their registration. The ideal solution would

be for minors to state their real age, but the desire to socialise and form part of a broader community

prompts them no to.

Until now there seems to be no option in the known social media platforms for the parent to openly

participate in their child’s registration, nor is there an express requirement for parental supervision.

Facebook’s Safety Centre page for parents in particular, encourages parents to be aided and

instructed by their teens113

. As much as Facebook would like to pass as a teen-oriented platform, the

harsh reality is that it is flooded by adults114

. These adults post adult content to which teens and

younger users are exposed to daily. Article 12 of the EU Audiovisual Media Services Directive

(AVMSD)115

imposes an obligation on MS to ensure that impairing or injurious audiovisual content

available on demand, regardless of the medium, is kept away from the eyes of minors. YouTube

videos would be a prime example of such content, especially since it has the ability of being

disseminated through other platforms with the mere click of a button, including Facebook. Google, in

response to the Directive, declared that they ‘will step up their advocacy efforts to make sure that

politicians and regulators don't impose unnecessary regulations which would stifle the fantastic

growth of user-generated content’116

.

Social media giants do not seem willing to conform to laws and regulations that restrict their content.

From the above it results that they accept no responsibility for their under-aged users – they will not

assume the role of the childminder. Without question this role falls on the shoulders of the person

legally bound for the satisfactory upbringing of the child: their parent. The EU Commission is currently

holding a public consultation in an effort to find an effective remedy117

.

112 Division 8 of the Business and Professions Code Ch 22.1. ‘Privacy Rights for California Minors in the Digital World’ < http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB568> accessed 24 July 2015 113

Facebook Safety Centre: Help your teens stay safe < https://www.facebook.com/safety/groups/parents/> accessed 24 July 2015 114 Maeve Duggan, Nicole B. Ellison, Cliff Lampe, Amanda Lenhart and Mary Madden, ‘Social Media Update 2014’ (2014) Pew Research Centre < http://www.pewinternet.org/2015/01/09/social-media-update-2014/> accessed 24 July 2015 115 Directive 2010/13/EU of the European Parliament and of the Council < http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32010L0013> accessed 24 July 2015 116 Patricia Moll, ‘European content regulation and the Audiovisual Media Services Directive’ (2007) Google Public Policy Blog < http://googlepublicpolicy.blogspot.gr/2007/07/european-content-regulation-and.html> accessed 24 July 2015 117

Public consultation on Directive 2010/13/EU on Audiovisual Media Services (AVMSD) - A media framework for the 21st century <https://ec.europa.eu/digital-agenda/en/news/public-consultation-directive-201013eu-audiovisual-media-services-avmsd-media-framework-21st> accessed 24 July 2015

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5.2.2. Copyright

Copyright is a multifaceted issue when it comes to social media. It applies not only to multimedia

content, but it also applies to text118

and personal image119

.

Without proper education, a minor is unlikely to be aware of all aspects of copyright infringement that

take place during their daily use of social media. Article 2 of the EU Copyright Directive120

, which is

based on the Berne Convention for the Protection of Literary and Artistic Works121

, declares the

director of an audiovisual work its rightholder, and Article 6 protects the rights or photograph

creators. Article 6bis of the Berne Convention allows the author to keep what is called ‘moral rights’ of

their work, even if they have parted with its economic rights: their work is not permitted to be used by

others in any way that contravenes the wishes of the original author.

Intellectual property rights (IPRs) are still mainly protected by national laws, as international

frameworks serve a regulatory purpose, more than anything else. For example, signatories to the

Berne convention are also signatories to the WIPO Treaties122

which are an upgrade from the

Convention but still exist side by side, excluding some of its provisions such as Art 6bis on moral

rights. At the same time, members of the TRIPS agreement that are also signatories of the Convention

can use new remedies offered by the latter to circumvent the first123

.

Where moral rights are included in laws of the country of origin of an original work (eg a sound

recording, a photograph or a video) the ‘share’ button commonly found on social media may turn into

an item of hazard. Children are enthusiastic and naturally prone to gamification124

and as such are

quick to click on buttons, especially ones that help them communicate their interests to a broader

audience instantly. A funny video, a cute image, their best friend’s girlfriend, the next questionable

person in Wallmart: these buttons are magic! To protect minors against their impulse the State of

118 Dante D’Orazio, ‘Twitter is deleting stolen jokes on copyright grounds’ (2015) The Verge <http://www.theverge.com/2015/7/25/9039127/twitter-deletes-stolen-joke-dmca-takedown> accessed 26 07 2015 119 Tatiana Synodinou, ‘Image Right and Copyright Law in Europe: Divergences and Convergences’ (2014) 3(2) Laws 181-297 120 Directive 2006/116/EC of The European Parliament And Of The Council on the Term of Protection of Copyright and Certain Related Rights 121 Berne Convention for the Protection of Literary and Artistic Works <http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=283698#P123_20726> accessed 26 July 2015 122 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) 123 World Trade Organisation: ‘Some provisions of the Berne and Rome conventions that are incorporated into the TRIPS Agreement by reference allow members to use additional flexibilities provided they notify other members’ <https://www.wto.org/english/tratop_e/trips_e/trips_notif6_bernerome_e.htm> accessed 26 July 2015 124

Jennifer R Whitson, ‘Gaming the Quantified Self ‘ (2013) 11(1/2) Surveillance & Society Journal 166-167 <http://library.queensu.ca/ojs/index.php/surveillance-and-society/article/view/gaming/gaming> accessed 26 July 2015

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California, upon its introduction of its ‘Privacy Rights for California Minors in the Digital World’

mentioned above, decided to add a provision which imposes a duty on service providers to ascertain

at all times that the child has the ability to remove their posted content125

. Unfortunately, if that

content is under the copyright of another and the post has had the misfortune of being indexed in

any form of archive (eg a search engine, internet archives or social media content indexing sites), the

law does not apply. The law does not apply to online services outside the jurisdiction of California

either – although it can be debated that Silicon Valley is the centre of internet technology

worldwide126

.

Mistakenly sharing copyrighted content is one thing, mistakenly licensing an internet entity to use it is

another. As we discussed in previous sections of this chapter, generally speaking there is an age limit

above which the child is capable of contracting127

. This does not, however, apply to copyright – just

like with real property, there are no age restrictions. Children’s copyright is infringed on social media

in several ways. Parents post their children’s work, which is shared by the users they are connected to

with other users, indefinitely. Most social media platforms have included in their Terms and Conditions

a provision which gives them a transferable license of the IPRs of all user generated content on their

servers, subject to deletion of that content128

. Where though, that content has been shared before its

deletion, the provider retains the license to that content, even though the original poster has deleted

it129

. This essentially means that once the parent uploads their child’s work to the social network, the

child might not be able to ever revoke that license; the Internet owns it. As trivial as it reads, we

should not take this issue lightly. A minor’s work may well go beyond mere doodling on a sheet of

paper: it may be a song, the future subject of a music deal; a story waiting to be published; a

photograph awaiting an award. Whatever it may be, without proper instruction and prevention

measures we cannot expect to prevent copyright infringement from and against minors.

125 Division 8 of the Business and Professions Code (n113) Ch 22.1. s 22581 126 List of companies with headquarters in Silicon Valley, CA: <http://www.siliconvalley.com/companies> accessed 26 July 2015 127 6.1. Online Purchases 19-21 128 Eg Facebook Statement of Rights and Responsibilities: Sharing Your Content and Information <https://www.facebook.com/legal/terms>; Instagram Terms of Use: Rights <https://help.instagram.com/478745558852511/>; Tumblr Terms of Service: Subscriber Content License to Tumblr <https://www.tumblr.com/policy/en/terms-of-service>; Twitter Terms of Service: Your Rights <https://twitter.com/tos> accessed 26 July 2015; 129

Facebook Statement of Rights and Responsibilities: ‘This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it’ <https://www.facebook.com/legal/terms> accessed 26 July 2015;

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5.2.3. The Right to Privacy

Parents like to post more than their children’s art work online. They also like to post photographs of

them, facts about their lives, their milestones, share their location, and rarely do they seek consent.

They do not seem to appreciate the consequences of their actions; other than a mortified young adult

whose potential employer can easily access a full record of their life – possibly including semi-naked

portraits of them in nothing but a nappy – this behaviour poses a real danger for children in their

current life. Many parents upload images and post updates of their children with their geolocation

settings enabled, alerting the world at large to their whereabouts. If one was to follow the Facebook

timeline of a parent they could in all probability get acquainted with the family’s daily routine,

relations, health, finances, likes and dislikes130

. Safety concerns also arise in relation to exposing

children to criminal behaviour such as child pornography (where pictures are copied to pornographic

web sites without permission)131

, or even abduction.

The right to privacy is upheld by the Universal Declaration of Human Rights132

, the European Human

Rights Convention133

and the Convention on the Rights of the Child134

. The latter, in particular, also

imposes an obligation on its signatories to ensure that adults’ decisions that have an impact on the

child are put to the child first135

. Although there are international frameworks that protect the will of

the child, and copyright laws that protect the right to personality136

, the European parent does not feel

the need to obtain the consent of their child before sharing their private information with the public;

arguably, such a decision might fall within the ambit of parental responsibility, but personal rights

such as these are considered inherent, not patrimonial137

.

Where the adult is oblivious to the dangers of posting personal information, minors do not seem to

be much wiser138

. Other than running social media profiles and updating their status publicly139

with

130 FBI: Cyber Alerts for Parents & Kids <https://www.fbi.gov/news/stories/2011/december/cyber_122211/cyber_122211> accessed 27 July 2015 131 Nina Criscuolo, ‘‘Sharenting’ offers benefits for parents, safety concerns for children’ (2015) WISH <http://wishtv.com/2015/05/06/sharenting-offers-benefits-for-parents-safety-concerns-for-children/> accessed 27 July 2015 132 UDHR Art 12 133 ECHR Art 8 134 UNCRC Art 16 135 UNCRC Art 12 136 Image Right and Copyright (n120) 137 Elspeth Reid, ‘Protection for Rights of Personality in Scots Law: A Comparative Evaluation’ (2007) 11 ELJCL 4 3-5 <http://www.ejcl.org/114/art114-1.pdf> accessed 27 July 2015; Johann Neethling, ‘Personality Rights’ in Jan M Smiths’ (ed) Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar Publishing 2012) 673-674 138

‘The I in Online’ Children and Online Privacy Survey <https://www.google.gr/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCUQFjABahUKEwjhjd2Ck4DHAhWKlCwKHfamDXs&url=http%3A%2F%2Fwww.chis.org.uk%2Ffile_download%2F49&ei=K62

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their location, experiences, friends, and feelings, they also feel the need to upload images of

themselves to complement the former, oftentimes portraying other young persons. There is

considerable difficulty in attaching blame when status updates involving third parties breach the

privacy of these third parties; the younger the child, the less it can be expected of them to evaluate

the ramifications of the content they post online140

. Moreover, they are too young to appreciate the

level of security that these platforms actually provide for the data they host. Constant data breaches

and content leaks demonstrate how no medium is impermeable141

; private content needs to be

uploaded with the same care as that which is intended to be made public. It is unreasonable to expect

children, especially younger ones, to exercise such judgement, nor has technology reached the point

today where automatic filtering of such content during upload is possible. For now, the only filter

available to us is parental supervision.

Ubiquitous computing and incessant connectivity have become both a child’s best friend and foe.

Nowadays all forms of Internet communication contain e-commerce elements, even those that do not

require a fee. The parent should ensure that their own Internet use is not at the child’s expense. At the

same time they owe a duty not only to their dependent, to uphold their personal rights, but also to

third parties that might be affected by the child’s online behaviour. Any kind of online transaction that

involves a minor, whether commercial or not, is not necessarily valid as the minor has limited

contractual capacity. Children using the Internet unsupervised might engage in deeds without the

consent of their parent, which in turn can be detrimental to others: an unauthorised purchase, the

disclosure of personal information, or breach of another’s copyright. One way or the other, it is

essential that the parent takes part in their daily online interactions.

4VaHMB4qpsgH2zbbYBw&usg=AFQjCNFfrf3pwr8MczVowu_zR-panwrBdw&bvm=bv.98717601,d.bGg> accessed 27 July 2015 139 Sophie Curtis, ‘Facebook allows teenagers to share status updates with the world’ (2013) The Telegraph <http://www.telegraph.co.uk/technology/facebook/10386401/Facebook-allows-teenagers-to-share-status-updates-with-the-world.html> accessed 27 July 2015 140 Children and Young Persons (n13) 141 James Rogers, ‘Leaked Snapchat images should serve as a wake-up call to users, expert says’ (2014) Fox News < http://www.foxnews.com/tech/2014/10/13/expert-leaked-snapchat-images-should-serve-as-wake-up-call-to-users/> accessed 27 July 2015; Andrew Griffin, ‘WhatsApp security bug shows private pictures to strangers’ (2015) The Independent < http://www.independent.co.uk/life-style/gadgets-and-tech/news/whatsapp-security-bug-shows-private-pictures-to-strangers-10018172.html> accessed 27 July 2015; Cass Jones, ‘Twitter says 250,000 accounts have been hacked in security breach’ (2013) The Guardian < http://www.theguardian.com/technology/2013/feb/02/twitter-hacked-accounts-reset-security> accessed 27 July 2015

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PART IV: RECOMMENDATIONS

In this chapter we will consider the issues examined in previous sections of this paper and propose

solutions that might have a positive effect on the use of the Internet by minors. As our title reveals,

these solutions revolve around parental liability. There are many ways in which parental liability could

be imposed on parents, and just like we have seen national laws of EU MS do provide for it in general

terms in tort, crime, as well as contract law.

Our goal is to recommend provisions that would not contravene the aforementioned national laws;

they would complement them. The author has three of, what they would like to believe, are plausible

suggestions: (i) transform parental mediation from discretionary to mandatory, (ii) amend the

upcoming General Regulation on Data Protection to impose stricter measures in relation to children

for all types of data services as opposed to only child-specific ones, and (iii) make additional

provisions for the contractual rights and duties of online consumers and those of their parents.

6. Parental Mediation

Studies have shown that parental interaction weighs significantly on children when it comes to

Internet communications142

. Extensive psychological research has demonstrated that the amount, as

well as the manner of involvement of the parent in the daily lives of the child has an immediate effect

on their way of thinking and acting143

. This kind of involvement is called ‘parental mediation’144

and it

can be both positive and restrictive. Parental mediation was initially concerned with television, but the

term is nowadays also applied to the new kind of entertainment: the Internet.

Positive, or active145

, parental mediation is the type of soft involvement, whereby the parent instructs

the child and gives oral guidelines with regard to the use of the media. Negative, or restrictive, refers

to the grounds and rules laid by the parent: time limits, content or service prohibitions etc. A third

type of mediation exists, suitable for younger children, namely co-use, or co-viewing: the parent surfs

the Internet along with the child and actively participates in the process.

142 Sora Park, ‘Effects of Home Environment on Internet Use and Dependence of Children and Adolescents’ (2011) AOIR 4 < http://spir.aoir.org/index.php/spir/article/viewFile/28/30> accessed 29 July 2015 143 Ibid; Markus Appel, Barbara Stiglbauer, Bernad Batinic, and Peter Holtz, ‘Internet Use and Verbal Aggression: The Moderating Role of Parents and Peers’ (2014) 33 Computers in Human Behavior 235–241 <https://www.uni-koblenz-landau.de/de/landau/fb8/ikms/medpsych/appel/PandP> accessed 29 July 2015 144 Lynn Schofield Clark, ‘Parental Mediation Theory for the Digital Age’ (2011) 21 Communication Theory 4 323–343 < http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2885.2011.01391.x/abstract> accessed 29 July 2015 145 Sonia Livingstone and Ellen J. Helsper, ‘Parental mediation and children’s Internet use’ (2008) 52 Journal of broadcasting & electronic media 4 581-599

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Any type of parental mediation, if used on its own, will be ineffective. As an example, restrictive

mediation cannot work as with the plethora of mobile devices and services available, inevitably, some

online activities will be out of the parent’s control146

. Talk alone does not guarantee obedience, and

many older children will see constant co-viewing as an invasion of their privacy. If however ‘talk’ is

combined with another type of mediation to counterbalance the procedure, it has been found very

beneficial for teenagers, as the ones who do engage in conversation with their parents gain a lot more

resources than those who don’t147

.

If not an adult activity, we can conclude from our discussion so far that with so many dangers to

consider, the Internet is at least an activity that requires special skill. If the parent wishes their child to

engage in such an activity, just like driving a car148

, the young one needs to be instructed about the

vehicle, how to handle it, the rules on the road, and be supervised until they have become competent

enough to drive on their own.

Parental mediation exists in every home, under one form or another, there is however no streamlining

of the process. The author would like to propose that parental mediation, subject to the principles of

subsidiarity and proportionality, is made legally binding on parents throughout the EU, possibly in the

form of a Directive or an amendment thereof. In particular, the parent should have four duties:

(a) Duty to inform one-self: before the parent can proceed to any form of mediation, they first

need to learn the basics of the Internet, its regulation, its services and generic dos and don’ts

– then, and only then, will they be in a position to effectively help their child go online safely.

(b) Duty to communicate: as seen above, positive mediation and communication between parent

and child is key, not only to exert authority but also to pass on needed information. With

good communication comes good understanding and trust, which leaves little need for the

minor to turn to peers and other sources for guidance149

.

(c) Duty to instruct: co-viewing is just as important as any other form of mediation. The parent

has a duty to provide the child with hands-on experience; they need to teach them which web

sites to visit and which to avoid, how to use social media wisely, which apps to download, how

to control their privacy, what type of information to share and the best way to share it.

146 Internet Use and Verbal Aggression (n144) 7 147 Appel, Holtz, Stiglbauer, and Batinic ‘Parents as a resource: Communication quality affects the relationship between adolescents’ Internet use and loneliness (2012) 35 Journal of Adolescence 1641-1648 148 Harrison Polites, ‘Why surfing the net should be like driving a car’ (2013) Technology Spectator <http://www.businessspectator.com.au/article/2013/5/24/technology/why-surfing-net-should-be-driving-car> accessed 29 July 2015 149 Internet Use and Verbal Aggression (n144) 15

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(d) Duty to supervise: all of the above would be inadequate if the parent is unable to apply

measures that would restrict the minor’s Internet use and affirm the given instructions. These

measures can be both technical and behavioural: it does not matter whether it is an oral

prohibition, an online content filter or a timer, as long as it enforces parental mediation.

These duties do not need to be strict or absolute, nor do they need to go very far. The principle

behind this idea is simple: if the parent allows their minor dependent to use the Internet without any

form of control and the minor gets into mischief, the parent should be liable. This should apply in

both tort and contract, due to the lack of capacity of the minor in both areas of the law. We propose,

in other words, a form of primary, fault-based liability where the burden of proof lies on the parent. As

we have seen in Chapter II such a form of liability already exists in some EU MS150

.

7. General Data Protection Regulation

As a sequel to the aged Data Protection Directive151

, the General Data Protection Regulation152

intends

to bring online privacy into the 21st century. Taking into account the extensive use of the Internet by

minors it has made special provisions for the data collected from that use.

The Pros: section 29 of the preamble points out the limited capacity of children in a social context and

section 38 acknowledges the need for specific protection. Article 4 adopts the UNCRC and defines the

child as a person under 18 years of age. Article 7 gives the data subject the right to withdraw their

consent for data processing at any time, which consent will not be legally binding should the subject

be in an unfavourable position. As we have seen, generally, a minor is often found in such a position.

Article 16 gives the subject a right to rectification and article 17 a right to erasure. With regard to the

latter, where the subject has withdrawn their consent the controller is obliged to not only remove such

data from their system, but to inform third parties which have obtained such data through the

controller as well. This provision in particular is a very good solution with regard to social media and

content sharing within the same platform.

The Cons: section 46 of the preamble makes clear that where processing is mentioned with regard to

a child, it is processing that is addressed specifically to a child. The assumption that restrictions on the

processing of children’s data only apply to child-oriented services is supported by article 8, whereby

the consent of the parent is needed for data processing of a person under 13 only if the service is

directly offered to children. In this case, not only does the controller have an obligation to verify the

150 (n20) 151 Directive 95/46/EC of the EP and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML> accessed 29 July 2015 152 (n1)

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identity of the user (section 52 of the preamble), but they also need to obtain the consent of the

parent by specific criteria and possible standard forms – which the EC will provide in the future. In

contrast to section 52, article 10 removes from the controller any obligation to verify the data subject’s

identity by requesting further information.

The Maybes: article 11 poses an obligation on the controller to provide information with regard to

terms and use in ‘intelligible form’. This obligation is augmented when that information is addressed

specifically to children.

It is illogical that the General Regulation protects the interests of the child only where the service is

addressed specifically this type of audience. As we have established throughout this paper, minors use

the Internet extensively: they start using services that are adult-oriented such as social media from a

young age, and engage in e-commerce processes with every click of a button. It is also illogical that

controllers, especially those with an e-commerce aspect, are not obliged to request additional

information for the verification of a user’s identity. Article 11 should be amended to impose such an

obligation where the controller has reason to believe that the user is under the age of 13.

Article 8 should make data processing without the consent of the parent unlawful for all services, and

not only those which are child-oriented. It would be prudent for the EC to lay down standard forms

that require the co-signing of the parent, eg either by requesting the parent’s mobile phone number

or by verification through any social media account153

.

8. Additional Provisions

Article 8(3) of the General Regulation makes the data processing of persons under 13 without parental

consent unlawful subject to national laws. We have already established in the E-commerce section of

this paper154

that contract law varies substantially among the EU MS, and that platforms such as social

media, albeit without pecuniary exigencies, still provide a commercial service. While article 8 refers to

all jurisdictions beyond that of the EU, harmonisation within the EU is poor. The EC is currently

working on a Common European Sales Law (CESL)155

that aims to streamline contract law principles

with regard to sales of goods and services, tangible and digital. These will also apply to a variety of

153 Since it has now become common practice to subscribe to services through Facebook or Twitter, the latter would not be unreasonable: Spotify <https://www.spotify.com/us/signup-for-spotify/?ref>; Ask.fm <http://ask.fm/signup>; Chess.com <https://www.chess.com/register>; GoodReads <https://www.goodreads.com/user/sign_up>; Airbnb <https://www.airbnb.com/signup_login>; Roblox <https://www.airbnb.com/signup_login>; Friendlife <https://friendlife.com/>; Chegg <https://www.chegg.com/auth?action=login&reset_password=0> etc 154

6. E-commerce 18 155 Common European Sales Law Official Web Site < http://ec.europa.eu/justice/contract/cesl/index_en.htm> accessed 30 July 2015

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Internet services by reason of their business model. Even when a service is offered for ‘free’, there

might be in-app purchases involved.

It is advisable that CESL defines what constitutes a ‘purchase’, and that it sets a standard age for

contractual capacity. The author argues that alongside a Directive on parental mediation, CESL would

cover matters of contractual liability more adequately, as a large portion of consumers are minors156

.

Following the reasoning of the proposed Directive, the parent should owe a duty to the seller to

enforce the minor’s contract, unless there is a good reason for rescission – and not merely by reason

of its performance by a child.

156 Lodewijk Pessers, ‘Refining the legal approach towards the underage consumer: A process still in its infancy’ (2012) IPITEC 3 < http://www.jipitec.eu/issues/jipitec-3-1-2012/3317/pessers.pdf> accessed 30 July 2015; ‘Jongeren en E-commerce’ (2008) OIVO 24-31 < http://www.oivo-crioc.org/files/nl/3943nl.pdf> accessed 30 July 2015

32 Around the World in 80 Seconds:

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PART V: CONCLUSIONS

Children are exposed to the Internet and its services from a very young age. Parents should owe a

duty of care both to the minor, as well as the persons that suffer the consequences of the acts of the

minor. Parental responsibility directed at the child, albeit with a different title, exists in all the national

laws of EU MS in the form of personal liability. With regard to third parties, however, things are more

complicated: different liability attaches depending on the crime or delict, and the law of each MS. The

end result is that, even though the Internet is a unified network that extends to all four corners of the

EU and beyond, within the EU there is poor harmonisation of child-related law.

Internet law is a fairly recent concept, stemming from the commercial explosion of the Internet during

the md-90s. Wrongdoing is much more potent online than in the tangible world due to the extent,

permanence, and speed of mobile computing. Cyberbullying and e-commerce are two large umbrellas

encompassing a variety of online wrongs, and form two major aspects of Internet law – as a result

they are hard to define with precision.

In the EU most national legal systems combat cyberbullying by approximation, using laws that

generally apply to harassment and defamation. Overall there is little targeted provision for forms of

cyberbullying such as identity theft and revenge form, leaving cyberbullying victims vulnerable.

Additionally, it is clear that mere punitive legislation has proven ineffective and that preventative

measures and campaigning have given better results.

The biggest problem with e-commerce is jurisdictional fragmentation and reckless use. The notion

today incudes explicitly commercial services, as well as services that have no apparent commercial

character such as social media platforms and free mobile applications. Besides the fact that all these

services come with complex terms and conditions addressed to educated adults, a child cannot enter

into a valid contract until they have reached the age of majority of either their jurisdiction, or the

jurisdiction that governs that contract. From the above it results that they cannot be blamed for

entering into a contract they have no capacity to conclude, especially if they were not aware they were

entering it. Where they have, however, entered a contract knowingly, it is very hard for the other party

to enforce that contract.

There is a lack of obligation for service providers to identify the exact identity of a subscriber or

contracting party. Not only do minors lie about their age online, but very often parents encourage

them to do so when creating social media profiles – most social media platforms only accept

members over 13 years of age. The problem with this phenomenon is not only the compliance with

the terms and conditions, but also the possible unauthorised sharing of copyrighted material and

33 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

exposure to inappropriate content, for which providers will assume no responsibility. Besides allowing

their small children to run social media profiles, parents also tend to share their private information

with the public. This tendency is both a breach of the personal rights of the child but also a grave

security risk.

Evidently, parental mediation plays a big part in the relation the minor has with the Internet. Making

such mediation obligatory would lead to more responsible adults and Internet-savvy children. In

particular, this paper suggests putting the principles of parental mediation found in psychology into

an EU Directive that would give the parent four duties: the duty to inform one-self, the duty to

communicate, the duty to instruct, and to supervise. Streamlining online parental liability within the EU

would offer better protection for minors on the Internet, provide for legal certainty, and also help with

making future frameworks such as CESL more effective. Last, but not least, it would be reasonable to

extend the provisions of the General Directive aimed at protecting the interests of the child to all

internet services, and not just children-oriented ones, as children do not confine themselves to these

services only.

Children are beings with limited comprehension and judgement, and are therefore prone to

negligence and exploitation. It is up to the parent to protect them from the dangers in the real world,

as much as it is for them to protect them from those in digital reality. As long as the national laws of

EU MS that concern them are disparate and lack harmonisation, there is no superior authority to

oblige the parent to take precautions with respect to the actions of their dependent online. Maybe the

time is ripe for a ground-breaking solution that will not only safeguard the minors online today, but

will also help create responsible adult Internet users in the future.

34 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

APPENDIX I

EU Country Provision for Defamation

Criminal

Liability

Civil

Liability

1 Germany Criminal Code §187 *

2 United Kingdom Defamation Act 2013

(for pecuniary loss)

3 France Penal Code Art 222-33-2-2 *

4 Italy Penal Code Arts 594-595 *

5 Spain Penal Code s172(3) & s173 *

6 Poland Penal Code Art 212 *

7 Romania Criminal Code Arts 205-207 *

8 Netherlands

Title XVI Book II (Defamation)

Arts 261-271 *

9 Belgium Penal Code Arts 443-451 *

10 Greece Penal Code Art 363 *

11 Czech Republic Criminal Code Art 206 *

12 Portugal Criminal Code Art 180-183 *

13 Hungary Criminal Code Arts 179-180 *

14 Sweden

Freedom of the Press Act

Ch 7 ss 14-15

15 Austria Criminal Code Art 111 *

16 Bulgaria Criminal Code Arts 108 & 146

17 Denmark Criminal Code s267 *

18 Finland Criminal Code Ch24 ss9-10 *

19 Slovakia Criminal Code § 206 *

20 Ireland Defamation Act 2009

(for pecuniary loss)

21 Croatia Criminal Code Art 200 *

22 Lithuania Criminal Code Art 143

23 Slovenia

Chapter 18 of the Criminal Code

Arts 170-173 *

24 Latvia Criminal Code ss 156-158 *

25 Estonia Criminal Code § 129

26 Cyprus

Civil Wrongs Law

Arts 17 & 42

27 Luxembourg Criminal Code Arts 444 & 448 *

28 Malta Criminal Code Art 252

Art 256 (subj to Press Act)

(Press Act)

* Sue for personal/moral injury, regardless of pecuniary loss

35 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

APPENDIX II

EU Country

Provision Closest to

Identity Theft Wrongdoing

Criminal

Liability

Civil

Liability

1 Germany Civil Code (BGB) §12 Right to own name

2 United Kingdom

Computer Misuse Act 1990

(am by s35 Police Act 2006)

Unauthorised access to

computer material

3 France Criminal Code 434-23* Identity Theft

4 Italy Criminal Code Art 494* Substitution of Person

5 Spain Penal Code Arts 197-2 & 3

Unauthorised access &

modification of familial data

6 Poland

Personal Data Protection Act

Criminal Code Arts 266-269

Breach Illegal Data

Interference

7 Romania

Criminal Code Art 213

in conjunction with 215

Abuse of Good Faith

Fraud

8 Netherlands Criminal Code Art 139e

Distribution of data retrieved

by violating confidentiality

9

Belgium Electronic Communications

Act 145 §3bis

Using electronic

communications to cause

nuisance

10 Greece Civil Code Art 57-58 Right to Name/Personality

11 Czech Republic Civil Code s11 Protection of Personhood

12 Portugal Data Protection Law n. 67/98 Various Provisions

13 Hungary Criminal Code s226 Defamation

14 Sweden Penal Code Ch 4 s 9c

Illegal Access to Information

Systems

15 Austria Civil Code (ABGB) §43 Abuse of Identity

16 Bulgaria Personal Data Protection Act Various Provisions

17 Denmark

Act no 429 on Processing

of Personal information Various Provisions

18 Finland Criminal Code Ch24 ss9-10 Defamation

19 Slovakia

Act no. 428/2002 Protection

of Personal Data Various Provisions

20 Ireland Defamation Act 2009 Defamation

21 Croatia Penal Code Art 146 Unauth Use of Personal Data

22 Lithuania Personal Data Law 1996 Various Provisions

23 Slovenia Article 143 §4* Identity Theft

24 Latvia

Personal Data Protection

Law Various Provisions

25 Estonia Penal Code §1572*

Illegal use of another

person's identity

26 Cyprus

Processing of Personal Data

(Protection of Individuals) Various Provisions

27 Luxembourg Processing of Personal Data Various Provisions

28 Malta Data Protection Act Various Provisions

* Provision specific to Identity Theft Damages

36 Around the World in 80 Seconds:

Parental Liability with Regard to the Use of the Internet by Minors

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