The debate on whether photos of children can be uploaded to social networks without the consent of both parents is generating a lot of judicial activity.
There are many separated or divorced couples who do not agree on this point.
For some, posting photos of their children on social networks may violate their privacy; for others, it is a harmless and normal practice.
Whatever the case may be, if there is no agreement, it is possible that the most restrictive criterion is imposed, that is, that the ex-partner is denied the possibility of uploading photos to the networks without the consent of the other.
This is the case of the sentence we are commenting today, very recent, issued by the Provincial Court of Cantabria. In it, the court allows a mother to prevent her ex-partner from uploading images of her daughter on social networks without her consent.
Uploading photos of children to social networks: not without the permission of both parents
It is very common to see images of minors on social networks shared by their own parents, especially if the couple is united.
The situation changes in case of divorce or separation: sometimes there is disagreement on this point or it can even be used as a tool to fuel conflict between the parties.
There are arguments for and against both criteria and many factors to take into account: it is not the same to have open or closed social networks, to have many or few contacts… and likewise, there are photos of all kinds, some potentially more harmful to the child’s right to self-image than others.
Precisely this right to one’s own image is the one that comes into debate in these cases, and it is increasingly common that, both in divorce or separation proceedings and in requests for measures regarding the children in cases of breakup of common-law couples, an express pronouncement is requested from the judge or family court on this specific point.
This is the case of the judgment we are commenting on, published by the newspaper La Ley.
In its judgment, the Provincial Court recalls the background of this case, which came to the Court on appeal from a court of violence against women.
The judge had granted sole custody in favor of the mother and a progressive visitation regime in favor of the father with respect to the young daughter.
Regarding the specific point under debate (the possibility of uploading photos of children to social networks without the consent of both parents), the mother had expressly requested that the sentence should prohibit the use of the child’s image without the prior consent of both parents.
To this end, she had provided screenshots of the child on a social network, although it was not clear whether or not the dissemination was general and public.
In response, the Court upheld his claim, reasoning that we are talking about a fundamental right, the right to an image, and that, in the case of minors, when there is no consent from the parents or legal representatives in the absence of the Public Prosecutor’s Office, the dissemination of this type of images must be considered contrary to the legal system.
In addition, the judgment clarifies that incorporating the photograph of a minor, as long as he or she is an identifiable person, involves the dissemination of personal data, so that data protection regulations would apply.
The latter imposes the conditions applicable to the child’s consent with respect to information society services, starting from his or her own authorization when he or she is at least 16 years old. If the child is under 16, the processing is only lawful when authorized by the person with parental authority, i.e. both parents.
Thus, the parental authorityAccording to the Civil Code, parental authority is exercised jointly by both parents or by one parent with the express or tacit consent of the other.
In this case, the court of instance established that the parental authority was shared by both parents, so it must be both of them, by common agreement, who make the decision whether or not to upload the images of the child to the networks. In case of controversy or non-agreement, the interested parent must go to the judge to obtain the proper authorization. If you need help in any case related to Family Law, contact us without obligation: we will be happy to help you.
