In his The Public Editor column in the November 14, 2010 New York Times, writer Arthur S. Brisbane casts a critical eye on the a bicycle/pedestrian accident in which 87-year old Claire Menagh was recently knocked down and injured on a quiet New York City street. The operators of the two bicycles which ran into her were a four-year old girl and a five-year old boy. Media reports of the incident named each of the children, and their parents, after Ms. Menagh’s Estate (she died three months after the accident, of unrelated causes) sued the children for damages resulting from negligence, and their parents (also named in the media) for negligent supervision.
Mr. Brisbane, in his Public Editor role, asks whether the Times was right to publish the children’s names. He posed this question to various editors with the Times, who noted that the names were in the public record via the lawsuit, and that other news organizations had previously listed the names in their reporting. They also pointed out that since the case didn’t deal with criminal law claims, nor did it deal with the sexual exploitation of children, the prohibitions on naming children that those instances trigger did not apply to this story.
Critics of the Times’ decision, also profiled by Mr. Brisbane, note that once these children’s names appear in the online universe in this context, this public record is never erased, and will dog them for the rest of their life. “When we stigmatize them by using their names, we say that childhood in America ends at 4-years old”, says the Rev. Emma Jordan-Simpson, Executive director of the Children’s Defense Fund-New York.
Therese Bottomly, managing editor for readership and standards at The Oregonian in Portland, summarizes the impact the digital revolution has on the decision whether to publish children’s names in these cases:
“I used to think short-term about what effect coverage might have on a child returning the next week to a classroom, say, and whether that should be a consideration. Now, we think about the ramifications if a would-be employer or college admissions counselor searches for a kid 10 years down the road”.
This case is directly relevant to the issue of privacy protection versus a shared life approach – the latter being a lifestyle choice many people have chosen in the Facebook and related social network milieu many live in today. While I, and other academics who teach in the area of Internet and related hi-tech law, routinely counsel students to be careful what they upload to social network sites because employers now regularly do Google and Facebook searches, even we fail, I think, to consider the long term impact of this digitally open and recorded lifestyle. The idea of re-inventing yourself to move past youthful indiscretions or poor choices may become less available in a world where your digital history becomes inescapable. This is an effect of these shared lives that many of us, with our eye only on the next month or year, may come to regret only when it is too late. Will we come to a tipping point where we realize we have offered, as some call it, TMI (Too Much Information)?
As is often the case with the excesses of technology in the digital age, there is a social tendency to look to the law and the legal system for a fix for this problem. However, there are some concerns the law is poorly suited to address, and I suspect this is one of them. Attempting to ban or limit, through legal strictures, user-generated content is a losing battle. It is far more likely that it will take many more cases like the Menagh case before the battle for people’s hearts and minds on these privacy issues may be won, and the value of limiting what people share will begin to be embraced, perhaps by a generation yet to come.