Sharenting
Today, parents post photographs of their children on social media without a second thought. It is a common practice that now has its own term: sharenting, resulting from the contraction of « sharing »(sharing) and « parenting »(parenting). This raises questions about its legality. Although children may become aware of their digital footprint and online identity from an early age, they remain powerless to assert their rights, with parents assuming the strange dual role of parent and publisher. This responsibility creates a conflict between the child's right to privacy and the parents' right to freedom of publication. So, do parents have the right to post photos of their children online? Is there a legal framework or court rulings on this issue? We have reviewed the legal framework and the clarifications provided by case law.
The sharenting opposes the child's right to privacy against parental authority:
The sharenting is a practice that involves several legal concepts, including image rights and parental authority.
- The child's right to privacy:
Image is an attribute of personality that everyone possesses.
Indeed, if proven, infringement of image rights is punishable under civil law by the awarding of damages or any measure aimed at putting an end to the infringement.
If the image was taken in a private place, the perpetrator may face criminal penalties of up to one year's imprisonment and a fine of €45,000 (pursuant to Article 226-1 2° of the Criminal Code). The latter article of the Criminal Code literally punishes: «the act of deliberately infringing on a person's privacy by means of any process whatsoever, by capturing, recording or transmitting, without their consent, the image of a person in a private place». It refers to the capture of images in a private place and their dissemination on the internet.
As such, children who have reached the age of majority would be entitled to claim damages from their parents if they believe that their parents have violated their image rights and privacy within the limits of the criminal statute of limitations. Legal action has already been taken by children against their parents in Italy. In January 2018, the civil court in Rome ordered a mother to remove 500 photos of her son as a child that she had posted on Facebook and ordered her to pay €10,000 in damages if she failed to comply or posted further photos.
In terms of international law, Article 16 of the United Nations Convention on the Rights of the Child (UNCRC) stipulates that «no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation» and that «the child has the right to the protection of the law against such interference or attacks». (UN Commission on Human Rights, 1989).
Similarly, Article 8 of the CRC further preserves the importance of the child's identity, while Article 19 stipulates that all children have the right to protection (CRC, 1989). These rights, combined with relevant regional and national provisions such as the right to be forgotten described in Article 17 of the European Union's General Data Protection Regulation (GDPR), reinforce the importance of privacy and data protection for the future development of the child concerned.
- Parental authority for the right to publication:
When the person appearing in the image is a minor, it is necessary to obtain authorisation from the holders of parental authority. (Cass. 1st civ., 12 July 2006, no. 05-14.831). It is they who decide on publication and therefore define the boundaries of their child's private life. In this sense, a law has also been introduced to define the boundaries of parental authority with regard to children who are YouTubers on this subject.
It should therefore be noted that parental authority is exercised jointly and that, unless it is considered that parents are not taking sufficient measures to protect their children from the dangers of the internet, the problem arises when parents are separated.
The sharenting When dealing with situations involving separated parents:
Case law has shed light on this thorny issue through two judgments.
- Joint authority regarding the unusual act of opening an account with photographs:
A ruling by the Court of Appeal of Aix-en-Provence in September 2014 (CA Aix-en-Provence, 6th Chamber C, 2 September 2014, No. 13/19371) addressed this issue. In this case, the separated parent had not given consent for a Facebook account to be opened in the name of their minor child and wanted it closed. Regardless of the purpose of the account invoked by the parent who had opened the account in the name of the 7-year-old child, the latter was ordered to close the account within 10 days of the judgment being served.
- Parental authority concerning the common practice of sharing photos of children with a limited audience:
A decision dated 4 January 2011 (CA Bordeaux, 4 January 2011, No. 09/00788) outlined the scope of parental authority. In this case, the court rejected a request by a former partner to have photos of a child removed from social media on the grounds that they were sufficiently configured to be viewed only by direct friends. It should be noted that the court distinguished between a situation where the photographs of the child were only visible to a limited group of people and one where they were visible to the general public, which constituted an unusual act that necessarily required the agreement of both parents. In this case, the judges considered that the parent had taken the necessary precautions to protect their child from social media by setting the photos to a restricted audience.
As you will have understood, the invasion of a child's privacy caused by sharenting is considered to be in practice. We cannot stress this enough: social media must be used sensibly. It is important to remember that posting photos of your child is not solely the responsibility of the parent, but also involves a third party – the child themselves – who may one day assert their rights in relation to the invasion of their privacy through sharenting.
Finally, it should be noted that the question of parental authority over the right to open an account on a social network only arises up to the age of 15, the age specified in the GDPR of 23 May 2018 from which point the minor no longer requires parental consent to open an account in their own name.
Above all, we believe it is crucial for parents to educate themselves by reading social media privacy policies. Children must be treated with the respect and privacy they deserve.
