Following the critique of ChatGPT's response to the posed question, it will be discussed why

a child in South Africa should be able to sue their parent(s) for an "image rights violation,"
when the child's parent exposes the child's images on social media to generate income to
provide for that child's needs, also known as "sharenting".

Analyses

As a starting point-I was shocked and amazed at ChatGPT's response to the posed legal
question. At first glance, it truly indeed seemed like the type of essay one could expect from a
first-year law student. However, upon closer analyses analysis, I found four main issues in
ChatGPT's response to the posed legal question. The first being that the case law it used in its
analyses does not exist, the cases that I found with similar names to the cases ChatGPT gave
had nothing to do with the legal principles it was discussing. One example ChatGPT gave
was in paragraph 3 of its analysis is "S v Goliath and Others 2012 (2) SACR 431
(ECG)" this case that ChatGPT claims the right to privacy and dignity of the child in
relation toconcerning the right to control their image. However, S v Goliath [2015] JOL
32716 (ECG)1 does exist- but this case concerned the sentencing of a child to compulsory
residence in a Child and Youth Care Centre. ,T the case held that once a child had been
admitted to the centre, the Child Justice Court who sentenced the child becomes functus
officio2.

Another example of this can be found in paragraph 6 of ChatGPT's analysis, where the non-
existent case of Singh v Rampersad and Others [2014] ZAGPJHC 233. A case with a similar
name is Singh v Ramparsad (KZN564/2002) [2007] ZAKZHC 1, and this case concerns
whether Hindu marriages fall within the ambient of the Marriage Act 25 of 19613, or if it falls
within the Divorce Act 70 of 19794. The case certainly had nothing to do with the publication
of a child's image on social media without their consent as ChatGPT claimed.

The second issue I found was that ChatGPT incorrectly cites and or analyses legislation. A
goodn excellent example of this is found in paragraph 4 of ChatGPT's response- where it
claims that s28(2) of the Constitution of the Republic of South Africa, 19965 (the
constitution) states that "every child has the right to parental care and protection".

1
S v Goliath [2015] JOL 32716 (ECG).
2
Ibid para 20-23.
3
Marriage Act 25 of 1961.
4
Divorce Act 70 of 1979
5
Constitution of the Republic of South Africa, 1996 s28(2).
Meanwhile, the provision of s28(2) of the Constitution states that "A child's best interests are
of paramount importance in every matter concerning the child."

Thirdly, ChatGPT lacks the ability to analyse legal debates and "grey areas" in South African
law, and instead states either side of a legal debate as facts. A good example of this is in
paragraph 2 of ChatGPT's response- where it states that the s6(1)(a) of the Protection of
Personal Information Act 4 of 20136 (POPIA) will be applicable to the online commercial
exploitation of children by their parents. The question of whether POPIA would be applicable
in the online, commercial exploitation of children by their parents is one that is both debated
academically, and an issue that is yet to be grappled by our courts. The reason for this debate
is as follows; s6(1)(a) of POPI states that "the processing of personal information is excluded
where it occurs in the course of purely personal or household activity"7. Article 2(1)(c) of the
GDPR similarly provides that the regulations do not apply to natural persons during a purely
personal or household activity8. Paragraph 18 of the GDPR's introduction states that: "This
Regulation does not apply to the processing of personal data by a natural person in the course
of a purely personal or household activity and thus with no connection to a professional or
commercial activity"9. So, the current debate is whether or not the commercial onlineonline
commercial exploitation of children by their parents would fall under s6(1)(a) of POPIA or if
it would be excluded because it is a "commercial activity" to make money from posting
online content of one's children10. This is still a grey area in our law, as it remains to be seen
whether the courts in South African courts will adopt the GDPR's approach in relation to the
household exemption shown in s6(1)(a) of POPA11.

The fourth, albeit minor, issue of the response by ChatGPT is that it failed to consider any
foreign pieces of law or any academic commentary. These secondary sources of law are
imperative in developing and improving our law in South Africa, and without it them being
considered in academic debates, our law will stagnate.

Discussion of the legal question

The digital age has forever changed the way in whichhow children play, learn and more
importantly- how children's rights are implemented across the globe and in South Africa12.
6
Protection of Personal Information Act 4 of 2013
7
Ibid s6(1)(a).
8

9
Gabriel pg 607.
10
Ibid pg 608.
11
Ibid.
12
Understanding the privacy pg 100.
Due to the boom of technology and the internet, children can learn, engage with others,
communicate, and develop in ways that was were unimaginable before13. It has been
estimated that about 40% of the children in the continent of Africa have access to the internet
in some form or another14. There have been many discussions and concerns raised about how
children can create and harm their "digital identities", and even more has been written
about in relation to the threats children face from third parties online15. However, there
is virtually nothing discussingvirtually nothing discusses the implications of parents choosing
to publish information about their children online, and the negative repercussions and effects
of this choice16. "Sharenting "is a term used to describe the many ways in which parents share
details about their children online17. In many situations, parents act as the guardians of their
children- protecting them from the harms that are rife online18. But parents do not always act
as the guardians or protectors of their children online- as their disclosures online may harm
their children, whether it be intentionally or not19.

"Sharenting" to profit off your child gives rise to great significant challenges, such as how to
ensure that their Constitutionally protected rights, specifically in the context of their right to
identity (and debatably privacy). s28 of the Constitution of the Republic of South Africa,
1996 (the Constitution)20 provides for both the recognition and protection of the rights of
children of South Africa. Although the Constitution confers all the rights it gives to adults
unto children too, s2821 affords specific rights onto children, to the exclusion of their not
parents22. The Constitution therefore, therefore, provides children with the right to privacy
under s1423, and the right to identity under s1024. The right to identity and privacy both form
part of a persons' dignitas (their right to dignity25) in the context of the action iniuriarum26,
these two concepts were not dealt with separately in the past, and any violation of the two
would be considered damage to "dignitas". However, the case of Grütter v Lombard 2007 4

13
Ibid.
14
Ibid.
15
Sharenting pg 842.
16
Ibid.
17
Ibid.
18
Ibid pg 843.
19
Ibid.
20
Constitution of the Republic of South Africa, 1996 s 28(1) (b).
21
Ibid s28.
22
South African Family Law Pg 288
23

24

25
The constitution s10.
26
Neethling pg 352
SA 89 (SCA)27 (Grütter) finally recognised identity as being a separate personality right
worthy of protection on its own in South Africa. The right to identity aims to protect the
subjective interests of individuals in their image, likeness, voice, and other distinctive
personality attributes28- and thereforetherefore, image rights fall under the right to identity.

The right to identity is generally infringed if indicia (a name or photograph of a person) is

used in a way that that either does not reflect the person's true personality image or when
there is an unauthorised use or appropriation of the person's indicia for a commercial
purpose29. Therefore, the infringement of identity can occur in two instances, firstly, when
there is a misrepresentation of identity or, secondly, when there is a misappropriation of
identity30. Furthermore, the indicium of the person's identity must not only be contrary
to the determination of the holder of the right, it must further be contra bonis mores
(contrary to the convictions of the community)31. "Sharenting" to profit off your child
would fall under the second- when there is a misappropriation of identityidentity is
misappropriated for commercial value.

The first way identity (and therefore one's image rights) can be infringed is through
misrepresentation. In order to infringe one's identity through misrepresentation, there must be
a falsification of the personality image- in other words, the image or impression created must
be untrue32. An infringement of identity will only occur if the false impression that was made
can be connected to a particular individual33, and the test to be applied to see if there iscan be
connected to a particular individual, and the test to be applied to see if a sufficient connection
between the falsification and the person is that of a reasonable, average reader34. There are
three main types of misrepresentation that can be determined; the first being
"falsification"35.Falsification is mainly concerned with the act itself of falsification, before
any third parties have taken notice of the falsification36, so as an example- changing a
person's image on a photograph37. Falsification is generally considered to be contra boni

27
Grütter v Lombard 2007 4 SA 89 (SCA).
28
Deepfakes pg 407
29
Neethling pg 352.
30
Ibid.
31
Ibid pg 353.
32
Neethling pg 353.
33
Ibid.
34
Ibid.
35
Ibid pg 354.
36
Ibid.
37
Ibid.
mores in38. The second type of misrepresentation occurs when a misrepresentation is
"disclosure to individuals or a small group of people" is made39. Generally, this act is
considered contra boni mores, even if the misrepresentation is made only to one person or a
small group40. The only exception to misrepresentation to a group or a single person is where
there is a legal duty on an individual to reveal the truth41. The third type of misrepresentation
occurs in "mass publication"- where generally, the public disclosure of false information isthe
public disclosure of false information is generally contrary to public policy and is therefore,
therefore, prima facie wrongful42. Some examples that Neethling provides is name denial,
"where there is an express or tacit denial by a 3rd party that a person is entitled to a name, or
when there is a failure to mention a name when the person is entitled to such a mention"43, or
name assumption "where there is an unauthorised use of one person's name by another as the
latter's personal mark of distinction, or unauthorised use of a person's name in connection
with matters to which he has no association"44.

The second way an infringement of identity can occur, and the one that is applicableapplies to
the legal issue of "sharenting" is "misappropriation"45. For misappropriation, Neethling states
that it is not a requirement for the infringement of an identity in misappropriation cases to
have been accompanied by a misrepresentation46. The typical case of appropriation of the
personality for an economic purpose is the unauthorised use of a person's name or image for
advertising, 47as held in O'Keeffe v Argus Printing and Publishing Co Ltd and Another 1954
(3) SA 244 (C)48. This commercial appropriation is not restricted to the unauthorised use of
the personality for advertising- if it also includes places aspects of a person's personality for
"sale"49. The Grütter case is of importance here- as previously stated, it allowed identity to be
considered a separate personality right worth of protection in South Africa50. I believe that the
case of Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC)51(Wells) is of significance in
the assessment of whether children can sue their parents for commercialising off sharenting
38
Ibid.
39
Ibid.
40
Ibid pg 355.
41
Ibid.
42
Ibid.
43
Ibid
44
Ibid.
45
Ibid pg 357.
46
Ibid.
47
Ibid.
48
O'Keeffe v Argus Printing and Publishing Co Ltd and Another 1954 (3) SA 244 (C).
49
Neethling pg 357.
50

51
Wells v Atoll Media (Pty) Ltd [2010] 4 All SA 548 (WCC)
online. In one article about "sharenting" Steinberg discusses a study of the types of content,
often disclosed by parents -

"The University of Michigan conducted a study exploring the ways parents share online about their
children. The study's authors polled parents and categorizsed categorised the shared information in
five ways: (1) "getting children to sleep," (2) "nutrition and eating tips," (3) "discipline," (4) "day-
care/preschool," and (5) behavioural issues. The study noted that 56% of parents shared (potentially)
embarrassing information about their children online, 51% provided information that could lead to an
identification of their child's location at a given time, and 27% of participants shared (potentially)
inappropriate photos52". I thereby believe that children could indeed sue their parents for image rights
violations for parents profiting off "sharenting."

This type of information that is shared by parents (as shown above) would include images,
videos, and information about their children- this would fall under the category of image or
likeness; when the child is identifiable in the social media posts that the parents profit off of.
This is supported by Wells- where it was held that if a person is identifiable53 and the
appropriation of a person's image or likeness is for the commercial benefit or advantage of
another54, it was held that this may well call for legal intervention in order to protect the
individual concerned55.

One of the main issues in children being able to sue for their parents profiting off
"sharenting," I believe, lies in the grounds of justification for an infringement of identity. The
prima facie wrongfulness of an infringement of identity raises a presumption of wrongfulness
that can be countered by grounds of justification such as consent or public interest56. In s18(3)
(c) of the Childrens Act 38 of 200557 (the Childrens Act) states that a parent or guardian of a
child must give or refuse any consent required by law in respect of the child58. An example of
consent required from parents in the digital world would be s3559 of POPIA, which provides
for the "General authorisation concerning the personal information of children". And, parents
also have parental authority over children in terms of the common law60. So, the issue is- if
there is an infringement of identity by the child's parent in "sharenting", but the parents have

52
Sharenting pg 848
53
Wells para 19-20.
54
Ibid para 49.
55
Ibid.
56
Neethling pg 356.
57
The Childrens Act 38 of 2005 s 18(3)(c).
58
POPIA and childresns rights pg 610.
59
POPIA s35.
60
POPIA and childrens rights pg 610.
consented to this infringement- would "sharenting" to profit off of children not be considered
boni mores in the eyes of the law61?

This is where the "best interest of the child" provision in s28(2)62 of the Constitution becomes
important. In the case of S v M 2007 (12) BCLR 1312 (CC)63, Sach J held that it is the very
flexibility of s28 of the Constitution that gives it its strength, and the determination of the
"best interests" of the child will depend on the circumstances and the context of each case,
and that-

"If a child is to be constitutionally imagined as an individual with a distinctive personality, and not
merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension
of his or her parents, umbilically destined to sink or swim with them. The unusually comprehensive
and emancipatory character of section 28 presupposes that in our new dispensation, the sins and
traumas of fathers and mothers should not be visited on their children" 64.

I believe this quote to be imperative- as children are their own person, and deserve to have
their identities protected until they themselves can decide whether to profit off their identity.
It is unfair to treat children as an "extension" of their parents and thereby a means for their
parents to make money, even if it is for the purpose of maintainingto maintain the child.
Furthermore- parents have an obligation to maintain their children according to s18(d) of the
Childrens Act65, it should not be the "burden" on the child (in terms of their right to identity)
to maintain themselves or their parents when they are minors. Although there is a reciprocal
duty of support on children in terms of the common law towards their parents, grandparents,
or siblings- this only occurs when the child can support that person66. So, it would be unfair to
place this burden on a minor child.

Furthermore, the African Charter on the Rights and Welfare of the Child67 (the Childrens
Charter) and the Convention on the Rights of the Children68 (CRC) endorse that children's

61
Ibid.
62
S28(2) of the Constitution.
63
S v M 2007 (12) BCLR 1312 (CC).
64
Ibid para 18.
65
Childrens Act s18(d).
66
Family law book pg 309.
67
https://www.chr.up.ac.za/latest-news/83-news-chr/1102-south-africa-s-reporting-to-au-body-is-an-
opportunity-to-advance-children-s-rights-statement-on-south-africa-s-second-report-submitted-under-the-
african-charter-on-the-rights-and-welfare-of-the-child#:~:text=South%20Africa%20ratified%20the
%20African,in%20the%20country%20are%20fulfilled.
68
https://www.parliament.gov.za/storage/app/media/Pages/2019/november/19-11-
2019_30_Year_Commemoration_of_the_United_Nations_Convention_on_the_Rights_of_the_Child/docs/
FAST_FACTS_UNCRC_draft_2_19_November_2019final.pdf
right should be respected, protected, and fulfilled in the digital environment69. South Africa is
a state party to the Childrens Charter70, and we signed the CRC in 1993 and ratified it on the
16th June 199571- and we are therefore bound by both charterboth charters therefore bind us.
Although these charters speak about the child's right to privacy in the digital environment- we
can safely assume it applies to South Africa's Childrens right to identity, as the right to
identity fell under privacy in our law before the Grütter case. The right to a child's privacy is
provided for under article 10 of the Childrens Charter72, and article 16 of the CRC73.
According to the General Comment 25 of the CRC, it explains the importance of the child's
right to privacy in the digital environment as follows74-

"Privacy is vital for children's agency, dignity, and safety, and for the exercise of their rights. Threats
to children's privacy may arise from their own activities in the digital environment, as well as from the
activities in the digital environment, as well as from the activities of others, for example by parents
sharing online the photos or other information of their children or by caregivers, other family
members, peers, educators, or strangers"75

It should be noted that parents or guardians play a more active role in deciding the scope of
the content and information that younger children can consume and share, but the
parents/guardians should do so considering the views and opinions of the children too76.
Furthermore, article 20 of the Childrens Charter77 places a responsibility/duty on parents and
guardians to ensure that the best interests of the child are always their basic concern, and to
secure, to the best of their financial ability, that the conditions of living are suitable for a
child's development etc78. Therefore, parents and guardians should be careful of they
themselves not violating the privacy rights of the child, for, for example- sharing content
about children on public platforms79. It is argued that although this sharing may be well-
intentioned, parents or guardians may make such disclosures without appropriately
considering the effects of that sharing such information may have on a child's well- being80. It
is therefore submitted that even the international charters to of which South Africa is a part of
69
Understanding the privacy right.
70
Website
71
Website
72

73

74
Understanding pg 106.
75
Ibid.
76
Ibid pg 113.
77

78
Understanding pg 114.
79
Ibid.
80
Ibid.
frowns upon parents sharing information about their children on the internet, specifically in
relation to their right to privacy.

Finally, I feel it is important to mention the dangers in sharing personal information about
one's child on the internet, which would include cyberbullying, cyberstalking, and social
media can enable child trafficking and abduction.81- but the newest issue is specifically
Deepfakes and its contribution to child pornography. Deepfakes are created with deep
learning software that enables users to create deceptive videos, sound recordings and
photographs of events and people that are indistinct from reality82. In this modern day in age,
people find fake photographs and videos of themselves on social media, to which they never
consented83. There are many types of deepfakes- such as photo, audio, and audio and video
combined, and the recording of a persons facial, bodily and vocal features are essential for
online- the parents will certainly be posting many videos, photos, and videos with audio of
their children. Deepfakes pose an alarming risk in the context of non-consensual pornography
and different obstacles in the context of online child pornography84Deepfakes are particularly
concerning in the context of child sexual abuse, as these photos and videos can be used to
produce new online child sexual pornography using already existing material85. Theoretically,
creators of deepfake materials could create more images and videos of child pornography,
using images of children who have not been subjected to actual sexual assault86. Because
deepfake technology can superimpose anybody's face onto another person's body in a video, a
creator could take images of a child from any online site- let's say for instance Instagram or
Facebook, and put that child's face onto an image or video depicting another child's sexual
abuse87. And many victims of child pornography suffer from feelings of helplessness, fear,
humiliation snd and lack of control given that their images are available for others to view in
perpetuity- and as a result, the permanent records of a child's sexual abuse can alter their lives
forever88

81
A childs right to privacy pg 16
82
Deepfakes pg 407.
83
Ibid.
84
The double side of deepfakes pg 869.
85
Ibid pg 876
86
Ibid
87
Ibid pg 877.
88
Ibid pg 871.