Therefore, with this post we want to put the focus on how they are affected by the new regulations on data protection, in force since May this year. The paperwork for summer camps (as is the case with schools) increasingly involves the inclusion of clauses that allow the center to capture and publish photos or videos of its students. Although the reason may be educational, it is often related to marketing and communication strategies of the center itself: to show its activities in social networks, to increase its community of followers by sharing photos of children that their family and friends want to see and share… We analyze whether this practice is legal and what are the rights of children, in light of the regulations in Spain and, in particular, the new European Data Protection Regulation (GDPR).If you have doubts about any legal aspect related to your children or family law, please contact us.
Is it legal for an educational center to publish photos of my children?
The cases of dissemination of images of children are varied and very frequent: WhatsApp groups in which audiovisual material of school activities is shared; Facebook pages or school websites with videos of field trips, events or classroom practices… However, it must be clear that the first step for this dissemination to be possible is the consent of the parents, guardian or the minor himself (from a certain age). Thus, those responsible for the child have every right to refuse the use of his or her image and personal data (such as a photograph) in these spaces.
It is sufficient not to give their consent, since consent must, in general, be express.
In the same way, this practice is perfectly legal as long as such consent exists.
This is why these clauses are increasingly integrated into the registration papers as a mere formality, and it is common for parents to give their consent (sometimes without being aware of it).
However, we must not lose sight of the fact that the right to the self-image of minors is a fundamental right and, therefore, is very well protected in our legal system.
Specifically, we find mention of it in Article 18 of the Spanish Constitution (EC), in Law 1/82 on the Civil Protection of the Right to Honor, in Organic Law 1/96 on the Legal Protection of Minors and in the Charter of Fundamental Rights of the European Union (2000/C 364): Article 18 EC
- The right to honor, personal and family privacy and self-image is guaranteed.
- The law shall limit the use of information technology to guarantee the honor and personal and family privacy of citizens and the full exercise of their rights.
Article 3 Law 1/1982, on the Protection of the Right to Honor, Personal Privacy and Self-Image
- The consent of minors and incapable persons must be given by themselves if their conditions of maturity allow it, in accordance with civil legislation.
- In all other cases, consent must be given in writing by the legal representative, who is obliged to inform the Public Prosecutor’s Office of the planned consent.
If within eight days the Public Prosecutor’s Office objects, the judge will decide.
Article 24 Charter of Fundamental Rights of the European Union
- Minors have the right to the protection and care necessary for their well-being.
They shall be able to express their opinion freely.
Their opinion shall be taken into account in matters affecting them, in accordance with their age and maturity. - In all acts concerning minors carried out by public authorities or private institutions, the best interests of the minor shall be a primary consideration.
Right to the image of minors and new Data Protection Regulation
In addition to the rights we have discussed, another regulation that has a lot to do with the image of minors is the Data Protection Act, recently amended in Spain as a result of the new General Data Protection Regulation (GDPR). This text directly affects the processing of children’s personal data by educational centers, such as summer camps . Thus, the Data Protection Law legally considers minors as “vulnerable subjects”, which means that the protection of their personal data (including their photographs) is subject to special protection. Until the date of entry into force of the Regulation, in Spain a child was considered to be mature enough to consent to the use of his or her personal data from the age of 14. Thus, a child between the ages of 14 and 18 (and, of course, beyond) could consent to the processing of his or her personal data without the permission of his or her parents or guardian.
However, the GDPR raises this age limit to 16 years, although it leaves the door open for Member States to lower this minimum age in national legislation, setting the limit at 13 years.
In the exercise of this freedom, Spain has opted to lower the age limit to 13 years in the new Organic Law on Data Protection. However, when the child is under 13 years of age, the consent of the child’s parents or guardians will be required to allow the use of photographs or videos, and this must be given, in general, before the images are collected.
As for the processing of personal data to be carried out by the educational center, it must adopt security measures to avoid problems.
When is consent necessary and how should the school act?
The Guide for Educational Centers, recently published by the Spanish Data Protection Agency (AEPD) indicates in which cases express consent is necessary: – If the recording of images is produced by the school for educational purposes, such as school work or evaluations, the center or the Educational Administration would be entitled to such treatment without the need for the consent of the students or their parents or guardians.
– When the recording of the images does not correspond to such educational function, but are images of events or events that are usually recorded for dissemination purposes in the school magazine or on the school website, the consent of the interested parties is required, who must have been informed in advance of the purpose of the recording, especially if the images will be accessible indiscriminately or limited to the school community.
– In the specific case of photographs, those taken without an educational function may only be taken after having informed and obtained the consent of those over 13 years of age, or of the parents or guardians, communicating the purpose of these, if they are to be published and where.
In the case of images taken as part of the educational function, the person over 13 years of age or the parents or guardians must be informed at the time the child’s participation in the educational function is authorized.
– Teachers should be careful about the content of class work they upload to the Internet.
They must teach to value the privacy of oneself and others, as well as teach students that they cannot take photos or videos of other students or school staff without their consent and circulate them on social networks, to avoid any form of violence (cyberbullying, grooming, sexting or gender violence).
– When schools organize and hold events (Christmas parties, end of term, sporting events) attended by students’ relatives, it is good practice to inform them, for example, when requesting their authorization to participate or by means of notices or posters, of the possibility of recording images exclusively for their personal and domestic use. If you need help in any case related to minors or family law, please contact our lawyers: we will be happy to help you.
