Caixin
Sep 04, 2020 07:21 PM
OPINION

Si Weijiang: Where Parental Obligation Ends and a Child’s Right to Privacy Begins

The case revolves around the tension between a parent’s obligation to take care of a child and a child’s right to privacy.
The case revolves around the tension between a parent’s obligation to take care of a child and a child’s right to privacy.

Si Weijiang is a partner at the Shanghai-based Debund Law Offices.

Editor’s note: In East China’s Jiangsu province, a 14-year-old boy recently called the police on his father, accusing the man of violating his right to privacy by installing a camera in his room, according to Chinese media reports. The camera allowed the boy’s father to monitor him through a smartphone app. The father defended his decision, explaining that he and his wife worked away from home and were worried that their son was addicted to video games.

The case sparked a debate about where a child’s right to privacy begins and ends, writes Si Weijiang, a top civil rights lawyer.

The right to privacy applies to every individual, including juveniles; the right to privacy is a private power that can be used against a public power or a third party, which includes both guardians of juveniles. The right to privacy includes the right to be left alone and the right to keep personal information private.

The case revolves around the tension between a parent’s obligation to take care of a child and a child’s right to privacy. The case hinges on whether the parents exercised their rights proportionately.

In theory, juveniles are people with no or limited capacity for civil conduct. Parents will “invade” their personal space to a certain extent to exert guardianship. The right to privacy should then be partially or completely transferred to a parent. For instance, when a juvenile without capacity for civil conduct engages in activities that are highly inappropriate for their age, parents need to step in. Under these circumstances, it is completely reasonable for parents to enter a child’s personal space.

In this case, to monitor his son’s activities, the father put a security camera in the son’s room, which is an abuse of guardianship. In these circumstances, the law tends to favor the child’s privacy as it seeks to balance that right with parental obligation.

On the issue of how to protect the privacy of juveniles in family life, the law should allow juveniles to exercise certain legal remedies against their parents, but regulations now prevent juveniles from doing so. Juveniles cannot be an independent party to a civil legal action, so they cannot take actions like litigation without a guardian. So what can a child do?

The first solution is to introduce social organizations or public powers into family life to protect the juvenile’s right to privacy. However, this solution leads to the question of how to balance private rights and public powers. Family life is supposed to be private, and it is very hard to set clear boundaries about how much social organizations or public powers should intervene. In practice, this may result in an abuse of power by third parties, which will further damage the relationship between parents and children. Consequently, any third party should intervene mainly through persuasion.

Another solution is to set a minimum age for being considered capable to engage in civil conduct. Once juveniles reach a certain age ― for example, 14 ― they will be trusted with the ability to make judgements on their own. However, determining which age is appropriate is no easy task.

To summarize, the conflict between parents’ obligation to take care their children and a juvenile’s right to privacy is a family issue that can only be solved through better communication.

If parents infringe on a juvenile’s private space in extremely improper ways, they violate the juvenile’s legal rights, which calls for regulation from social organizations and public powers.

Translated by intern reporter Hou Xinle.

Contact editor Michael Bellart (michaelbellart@caixin.com)

The views and opinions expressed in this opinion section are those of the authors and do not necessarily reflect the editorial positions of Caixin Media.

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