Posting a Minor’s Photo on Social Media

Posting a Minor’s Photo on Facebook Requires the Consent of Both Parents

Right to One’s Own Image and Minors.

The right to one’s own image is a fundamental right. The decision to publish a photograph of a child or minor on a social network belongs to the sphere of parental responsibility shared by both parents. Therefore, it is not within the scope of decision-making for custody. This is stated in the Judgment of the Provincial Court of Barcelona dated April 25, 2017. The basis of this Judgment is the repeated doctrine of the Supreme Court.

Parents, as holders of parental authority, have the duty and responsibility to protect the image of their minor children. As the Supreme Court points out, the agreement of both parents will be necessary to publish images of their common child on social media.

 

Judgment of the Provincial Court of Barcelona.

We provide a transcription of the Fifth Legal Ground of Civil Judgment No. 360/2017, Provincial Court of Barcelona, Section 18, Appeal 827/2016, of April 25, 2017:

“Regarding the first question, minors are holders of rights, including the right to their own image enshrined in Article 18.1 of the Spanish Constitution, which establishes that ‘the right to honor, personal and family privacy, and one’s own image is guaranteed’.”

And it continues to recall:

“Recently, the Supreme Court, in its judgment of June 30, 2015, ruled on the right to one’s own image of minors and points out that image, like honor and privacy, constitutes today a fundamental right of the person enshrined in Article 18.1 of the Spanish Constitution, which belongs to personality rights, with all the characteristics of these rights, and which is specified in the exclusive faculty of the holder to disseminate or publish their own image, being able consequently to avoid or prevent reproduction and dissemination, regardless of the purpose of this dissemination”

“and that in the case of minors, it is based on the fact that whenever the consent of the parents or legal representatives of the minors is not obtained, with the absence of the Public Prosecutor’s Office, the dissemination of any image of them must be considered contrary to the legal system (Supreme Court Judgments of November 19, 2008, December 17, 2013, January 27, 2014, among others). It is, ultimately, the norm itself that objectifies the minor’s interest and determines the consequence of its disregard(…)'”.

 

Reminder from the Provincial Court of Barcelona.

Furthermore, the Provincial Court recalls the applicable regulations in these cases. Thus, the Civil Code of Catalonia in its Article 236-2 states that parental authority is an indispensable function. And it must be exercised within the framework of the general interest of the family, in the interest of the child, in accordance with their personality and to facilitate their full development’. In accordance with the provisions of Article 236-8, its exercise is joint. Article 233-8 states that the annulment of marriage, separation, or divorce does not alter the responsibilities that parents have towards their children. Consequently, these responsibilities remain shared and, as far as possible, will be exercised jointly.

Consequently, the Provincial Court warns of the need to have the prior consent of both parents to publish photographs of their minor child on any social network. In fact, the judgment warns that if an image were to be uploaded unilaterally, such publication could be considered contrary to the current legal system. And this, even if the dissemination is limited to a small group of family and friends.

Conclusions to Consider…

The right to one’s own image is a fundamental right. The decision to publish a child’s photograph on a social network is a shared responsibility of both parents. Custody cannot be claimed as an excuse.

Parents – both of them – are the holders of parental authority. Therefore, they have the duty and responsibility to protect the image of their minor children.

The agreement of both parents will be necessary to publish images of the child on social media. In any case, parents must avoid overexposure of the child in these areas, in the child’s best interest.

In the case of the judgment, parental responsibility was shared. It was documented that the father had published some photographs of the minor on his Facebook. And although its scope of dissemination was initially limited to his family and friends, there was no maternal consent. Therefore, this publication was contrary to the legal system.

Therefore, remember that posting a minor’s photo on Facebook requires the consent of both parents.

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