I - Introduction
We currently live in a new technological society, which has been implemented extremely quickly without any awareness of the risks that this transformation would entail for human beings.
Freedom of expression and exposure, accompanied by a selfish need for recognition and a lack of love, has led human beings to share a large part of their privacy and intimacy on the internet, especially on social networks, in order to gain "likes".
As a result of many centuries of not giving children a place of special importance, adults have been formed with special affective needs, with little ability to recognize and deal with their own emotions and thirsty to be seen and valued.
These adults have found a way to be seen and loved on social media, often unaware of the collateral damage that could result.
At the same time, despite the fact that in the middle of the 20th century concern began to emerge about legally protecting the rights, freedoms and guarantees of children, giving them a special status given their vulnerability and their inability to act consciously in society, there is still a belief in contemporary society, with greater emphasis on Western society, that children "belong" to their parents, that they are the "holders" of their lives and that "parental power" is unlimited.
Technological development and advancement, the breakneck pace of global society, parents' lack of awareness of their place in monitoring children's lives and development, the absence of education for education's sake and the few tools available to parents to promote the realization of the concepts contained in legal norms are phenomena that require attention and greater clarity in their definition.
The topic we propose to analyze concerns one of the most recent social phenomena called "sharenting", a portmanteau of the words "sharing" and "parenting". The main legal issue here is how to reconcile children's personality rights, which include the right to an image and privacy, and the exercise of parental responsibilities.
In the first part, we will give a brief legal framework on this issue, in the second part we will analyze the risks that can arise from this practice and how any resulting damage is or could be protected, and finally we will see how some countries, namely Portugal, have dealt with this issue legally.
II - Brief legal framework
1. Children's rights
1.1 General considerations
The first international law to refer to children's rights was the Geneva Convention of 1924, which for the first time put children first.
In 1948, the Universal Declaration of Human Rights also gave primacy to children's rights.
Later, in 1959, the Universal Declaration of the Rights of the Child was proclaimed, which laid down numerous rules protecting children's rights, establishing the best interests of the child as a basic premise.
In 1989, the Convention on the Rights of the Child was approved, one of the most complete and transformative legal instruments, recognizing children as autonomous holders of rights, freedoms and guarantees and active subjects in their own growth process.
In fact, it was from this date that major changes came about from a legal point of view, making it clear that children per se have fundamental rights, including personality rights, and that they also have the right to be heard and to express their opinions freely "in accordance with their age and maturity".
Nevertheless, these principles have shaken up an imminently patriarchal society that has been established for many centuries, so their application in practice has been, and in our view still is, very progressive and with some resistance. The realization and proper application of these standards requires a mature adult society, aware and educated to educate, phenomena that are currently still under construction.
Lastly, it should be noted that this Convention is binding on all states that have rectified this legal instrument, which means that states are obliged to incorporate these standards into national legislation and can even go further in their quest to protect children's rights.
At an international level, this is undoubtedly the benchmark legal instrument, and others have subsequently emerged on more specific issues such as cooperation in the field of adoption (1993 Hague Convention), child labor (1999 Convention No. 182) and crimes against humanity (Rome Statute of the International Criminal Court), among others.
Portugal signed the Convention on October 21, 1990 and went on to include these rights in its Constitution and to legislate on numerous matters with the aim of safeguarding the rights and best interests of the child.
1.2 Right to image
The right to one's image is a special personality right protected at the constitutional level - Article 26 CRP - and specifically in Article 79 of the Civil Code. This article of the Civil Code states that "a person's portrait may not be exhibited, reproduced or launched into commerce without their consent (...)", including two autonomous rights: the right not to be photographed and the right not to have the photograph published.
It is not our intention here to make a detailed analysis of personality rights it should only be noted that these are general, absolute, non-renounceable, non-transferable and imprescriptible rights which are acquired at birth.
In this context, there is no doubt that children are the holders of personality rights and that these rights are not available to their legal representatives.
The protection of these rights for children is particularly important here, as they are not yet aware of their existence, nor do they have the capacity to assert them, and their rights may even be violated by their parents.
What's more, with the evolution of new technologies and the "fever" of social networks, the capture and dissemination of images depends on a simple click. Children run a serious risk of seeing their image lost in the virtual world, often jeopardizing their emotional development and their present and future well-being.
An important issue that should be highlighted in our study is that the legally required consent for exposure or disclosure may, in some cases, be presumed (see STJ ruling of 07.6.2022) or even waived when justified by the notoriety of the person concerned or the position they hold or in the face of "political or legal requirements, scientific, educational or cultural purposes, or when the reproduction of the image is framed in that of public places, or in that of facts of public interest or that have taken place publicly".
In our opinion, this provision leaves a great deal of scope for the violation of this right to the image, which often has irreparable consequences, requiring a careful case-by-case analysis when interpreting these indeterminate concepts in the specific case.
As far as children are concerned, the issue is essentially that such consent must be given by the parents, who inevitably end up disposing of their minor children's personality rights, or alternatively, defending them whenever such consent has not been given.
1.3 The right to privacy
Interlinked with the right to an image, although independent of the former, is the right to privacy, provided for in Article 80 of the Civil Code. Although the legislator did not establish a definition of privacy, there is already a lot of doctrine and case law that has ruled on the subject, concluding with Menezes Cordeiro that it is everything that is not public, such as a person's feelings and emotions, their life story, their assets, their values, their sexuality, their body, their family, their home, etc.
However, in today's technological society and the ease with which each person exposes and shares a large part of their private life on social networks, the line between private and family life and the public sphere is becoming increasingly blurred and the concept of intimacy and privacy increasingly trivialized. Naturally, the situation becomes even worse when children's private lives are exposed by their parents or other entities with their consent.
1.4. The protection of personal data
The right to privacy is inevitably linked to the issue of data protection, and in some countries this protection is considered to be part of that right per se.
In Portugal, the right to informative self-determination is explicitly and autonomously enshrined in Article 35 of the Constitution and regulated in various pieces of legislation - e.g. Law 58/2029, which ensures the implementation of European Union Regulation 2019/679, and Law 59/2019.
In fact, technological advances make it possible to collect personal data almost instantaneously and its processing depends only on a click (or consent) often given hastily without being aware of the exact purposes and terms of the use of the information collected. Once again, consent is the crux of the matter here.
Despite the fact that the legal rules lay down a series of limitations on the collection and processing of personal data, in particular as regards the type of data collected, the purposes for which it is used and how it is stored, the challenge at the moment is to make people aware that they should not give up this right as a form of self-protection. In our opinion, there is a predisposition or even a willingness on the part of people to expose their private lives, to share information about their privacy and to consent to the processing and dissemination of this data recklessly without considering the risks that such an act entails.
We need a social reconceptualization of privacy, clearer information and legislation that imposes more controls and transparency. It is also essential to educate children and raise their awareness of these issues as they are increasingly exposed. Although the law grants special protection to children, according to Recital 38 of the European Union Data Protection Regulation, children are once again subject to the consent of their parents, at least up to the age of 13. From the age of 13, they can already give their consent to the processing of personal data, which is, in our opinion, even more dangerous.
2. The exercise of parental responsibility and the best interests of the child
In 2008, with the entry into force of the new legislation on Family Law, the term "parental authority" was replaced by "parental responsibilities", making it clearer that parents do not exercise power over children, but are responsible for protecting their rights, their upbringing and their development as human beings.
More recently, some legal scholars have come to prefer the term "parental care", emphasizing the parents' daily commitment to their children and praising the duty of "care" and protection. We agree with this terminology because it brings with it a more emotional and less "functional" nature to the role of parents, which we consider fundamental in today's society.
No less important is the premise, set out in the law, that parental responsibilities must be exercised in the best interests of the child, and not in the interests of the parents, with a view to making up for the incapacity of the minor, while always looking after their interests and rights.
In fact, it is hardly in the child's best interests to see images of themselves broadcast, in some cases on an almost daily basis, as well as information about them at an age when they are not yet capable of exercising their choice.
The exercise of parental responsibilities can never be exercised in an unlimited and indiscriminate manner. The right to a child's image and privacy must not succumb to the freedom of expression of parents who end up negligently using their children to capture public attention as if they were costumes.
In the same way, in our opinion, the consent given by parents regarding the disclosure of their children's images and personal data is not valid, as it is a voluntary limitation of a personality right, whenever there is no real interest on the part of the child.
Parents are obliged to ensure the healthy growth of their children, their safety in an increasingly challenging society and their mental health, now and in the future.
From the above, we believe that whenever there is no objective interest in the life of the child, parents should refrain from posting images of children and information about them in cyberspace.
Likewise, consent to the disclosure of data should only be given in specific cases and with certain limitations if there is a public interest at stake, from which the minor themselves may benefit, even if indirectly.
III - The protection of children's personality rights
In the Portuguese legal system, the protection of personality rights is provided for in Article 70 et seq. of the Civil Code, which establishes a general protection of personality, covering all forms of physical or moral injury.
Paragraph 2 of the same article clarifies that if an "unlawful offense" or "threat of offense" has occurred, the holder of the right may react in the first instance through "measures appropriate to the circumstances of the case in order to prevent the threat from being carried out or to mitigate the effects of the offense already committed."
In addition to these measures - which may be preventive or mitigating, depending on the case - civil liability may also arise whenever the assumptions of liability for risk or for unlawful acts are met (Article 483 et seq. of the Civil Code).
Although it is not specifically provided for in the law, criminal liability will also apply (Articles 190 to 199 of the Criminal Code) when the assumptions are also met and a complaint is lodged by the offended party. In this sense, the Porto Court of Appeal ruling of 12.07.2017 established that "the making of computer copies of existing photographs of the injured parties and their children, freely accessible on the latter's Facebook page, and their subsequent sending to them by email, constitutes the crime of Article 199 of the Criminal Code (illegal photographs), as it was done against the will of those they portrayed".
However, as far as the children are concerned, there is a pertinent practical issue in that they do not have legal capacity, namely to act in court. They can only do so if duly represented by those with parental responsibility, or by a special curator or, ultimately, by the Public Prosecutor's Office. It is easy to understand that since parents are the legal representatives of minors, they will not take legal action against themselves, leaving the children unprotected.
Finally, it should be noted that if parents do not exercise parental responsibilities in the best interests of their minor children, they may incur in a situation of abuse of rights under Article 334 of the Civil Code and may also be subject to disqualification or limitation of parental responsibilities under the terms of Articles 190 et seq. of the Civil Code.
It is clear from the above that although there is effective protection of personality rights, of which children are also holders from birth, there is no mechanism to effectively protect unemancipated minors.
It should also be noted that taking into account the consequences of violating the right to an image and to privacy, which are often irreparable, especially when it comes to disclosure in the virtual world, preventive action is essential, which will necessarily have to involve raising awareness not only among parents and minors, but also among the entire community of the risks arising from "sharing".
We believe that it would also be imperative to legislate to expressly prohibit the exposure of children on social networks or other online platforms, making it clear that such a prohibition overrides parental freedom of expression insofar as it undermines the fundamental rights and best interests of the child.
Although this rule has not yet been legally established in any country, some case law is beginning to emerge in this regard. Let's look at the decision of the Évora Court of Appeal on 25.06.2015, which states that "imposing a duty on parents to refrain from posting photographs or information that could identify their daughter on social networks is appropriate and proportional to safeguarding the right to privacy and the protection of personal data and, above all, the safety of minors in cyberspace".
The ruling also warns of the imminent dangers of this exposure, explaining that "the exponential growth of social networks in recent years and the sharing of personal information made available there" allows individuals who "wish to sexually exploit children to collect large amounts of available information and select their targets for crimes".
It should also be noted that, in addition to these crimes, there are many others relating to the alteration of identity based on digital filters and mechanisms, etc. For its part, the Supreme Court of Justice has ruled, with regard to a television program that exposed the behaviour of children at home, that "the right to an image and the right to privacy and other personality rights are embodiments of the dignity of the human person, which is an intangible and unavailable value", adding that "the instrumentalization of people, and in particular children, is contrary to public order because it offends the value of human dignity. In such a context, the limitation of personality rights through rights through consent is absolutely irrelevant as a cause for excluding the unlawfulness of the injury."
Subsequently, the Constitutional Court, in the same case, also ruled in favor of the Supreme Court of Justice, deciding "not to declare unconstitutional the rule that makes the participation of minors in television programs subject to authorization by the Children and Young People's Commission".
In short, there is already unequivocal case law on the need to protect children's rights and that these must take precedence over the exercise of parental responsibilities, which must be based on defending the child's best interests.
IV - Comparative Law - Community
In the community framework, there has been increasing regulation aimed at protecting people's data, including children, naturally. These are also protected by the Convention on the Rights of the Child, as mentioned above.
It is also worth noting the General Data Protection Regulation (GDPR) - Regulation of the European Union no. 679/2016 of April 27, expressly providing in its article 17 the right to erasure of data or "right to be forgotten," whereby, according to article 8 of the same regulation, children aged 16 or older (which may be reduced to 13 years) can request that their data be erased.
Although there is already more effective protection of children regarding their online presence, this regulation places the focus and obligations on companies (which control personal data) and does not address the issue of parents' rights within the scope of their parental responsibilities, still leaving children under 16 or 13 years old, depending on each state's provision, unprotected.
According to the results of a recent EU Kids Online study, 29% of children aged between 9 and 17 who participated said their parents posted texts, videos, or images about them without asking if they agreed; 14% asked their parents to remove that content; 13% were uncomfortable with such sharing, and 6% of these minors admit to receiving negative or offensive messages because of content posted by their parents.
According to an international study, it is estimated that, on average, a child appears in about 1300 photographs before turning 13.
In this context, it is imperative to begin legislating on these matters at the community and international levels in order to adapt legal norms to the current society immersed in the virtual world with all the risks that entails.
Let's look at the situation in some countries that have been debating this issue:
France
Undoubtedly, France is a pioneer country regarding legislation on the protection of children's rights. As an example, we can mention Law No. 2020-1266 of October 19 concerning the commercial exploitation of children's images under 16 on digital platforms, implemented by Decree No. 2022-727 of April 28 regarding the conditions under which people can create, produce, and distribute videos exposing minors under 16 on digital video-sharing platforms, aiming for profit.
Also, Law No. 2022-299 of March 2 regulates cyberbullying with special protection for children. Additionally, Law No. 2022-300 of March 2 provides for strengthening parental control over minors' internet access.
Regarding the sharenting topic more specifically, there is currently a bill, No. 758, being discussed in Parliament (Assemblée Nationale). As stated in the preamble of the bill, its drafting involved representatives of child protection associations, psychologists, and legal experts with the ultimate goal of being primarily an "educational law" rather than a punitive one.
Initially, the duty to protect the child's image lies with the parents within the scope of their parental responsibilities; only in strictly necessary cases will there be intervention by the State, through the judiciary, to ensure effective protection of the child's right to image and privacy.
In general terms, four changes are suggested:
Explicitly include the duty to protect children's images within the scope of parental responsibilities.
Clarify that the exercise of minors' image rights should be exercised by both parents, indicating that it is a matter of special relevance to the child's life.
Highlight the possibility of judicial intervention in case of disagreement between parents on these matters.
Open the possibility for the application of a limitation or inhibition of parental responsibilities in case of conflict between the parents' interests and the child's interest in exercising the right to the child's image.
United Kingdom
The UK is also one of the countries making significant legislative advancements, with the new "Online Safety Bill" already approved by Parliament after extensive debate. The main innovation proposed in this bill is the complete accountability of digital media platforms for the content they hold and distribute. In addition to civil liability with very high fines (up to £18 million or 10% of the company's profit), there may also be criminal liability.
Companies owning these social media platforms will be required to prevent the dissemination of any kind of illegal content or to remove all illegal content, to exercise tighter control over the ages and characteristics of their users, and to provide parents and children with clear and accessible means to report any issues related to this topic.
Indeed, this is an extremely strict law with a "zero-tolerance" approach, aiming to ensure that the UK is the safest country in the world to be online.
However, this bill does not address the issue of sharenting, although it is predictable that, following this one, many others will come, and this topic will be regulated soon.
Germany
Germany, although it has not yet legislated on this matter, may be the country with the most impactful advertising campaigns on the specific topic of sharenting, which have caused a significant impact on society. Indeed, no one will remain indifferent after seeing the Deutsch Telekom - Sharenting (2023) ad, in which we are confronted very realistically with the actual risks of sharenting, or with the #deinkindauchnicht, where we are surprised by the images.
As we mentioned earlier, since this is an issue that requires preventive action considering the risks arising from lack of control and the permanence in the digital world, raising awareness among adults through these types of campaigns is, in our view, an extremely effective strategy for changing the behavior of parents and society as a whole.
4. Others
In Italy, there was already a court decision, in a case brought by a minor under 16, condemning a mother to pay compensation to her son for posting his photos on Facebook and being prohibited from such practices as it seriously harmed the son's rights.
In Finland, the state was condemned by the European Court of Human Rights to pay compensation to a minor who was sexually harassed by an individual (whose identity the Finnish state cannot disclose due to the secrecy obligations of telecommunications networks) who used a photo of the minor published on the internet.
In many countries of the European Union and beyond (also in the United States, Australia, Brazil, etc.), there is already a real concern about this issue, leading to the adoption of new laws aimed at greater protection of children, as well as articles, campaigns, programs, and others aimed at raising awareness among adults and children about the precautions to take when we choose, almost inevitably, to be present in cyberspace.
V - Conclusion
We live in a society undergoing complete transformation in which the digital world is becoming increasingly relevant, and social networks such as Facebook, Instagram, TikTok, Snapchat, etc., are true forums for sharing information, often about people's private lives.
While it is true that this new world has numerous advantages such as sharing knowledge, quick communication, and the ease of establishing new contacts bringing together people with similar interests, it is also true that its excessive and imprudent use carries enormous risks that can violate the rights, freedoms, and guarantees of people, especially children.
In the case of children, there are increased risks due to their vulnerability, lack of wisdom, and unconsciousness, thus seeking to safeguard their rights with parents being primarily responsible for this duty of protection.
However, there have been not a few cases - some already dealt with in court - where parents themselves, in the exercise of their parental responsibilities, expose images of their children on digital platforms and/or social networks for various purposes. In the vast majority of cases, none of these purposes benefit the child, on the contrary, disrespecting the child's best interests.
If we consider that, according to a study, 50% of the photos present in pedophilia forums were initially published by parents on social networks, we can easily understand the seriousness of the harm that may result from such negligent practice.
When we act in cyberspace, we immediately lose control over the data and images we share, putting at risk fundamental rights of those exposed, such as the right to image and privacy. Some legal systems also add the right to live in peace ("right to be get alone") and the right to be forgotten.
In the case of children and young people, these rights are particularly relevant as they may jeopardize their future, their professional performance, their emotional stability, etc.
For these reasons, we consider the following:
(i) as a rule, parents should refrain from posting images of their children and not consent to the sharing of information about them,
(ii) parents and schools should also inform and raise awareness of the dangers arising from such exposure or disclosure so that individuals can make more conscious choices;
(iii) parents should also be provided with more information on these topics, sharing the results of studies, practical examples, court decisions, etc., to build a more mature and aware society;
(iv) minors should be involved in these discussions whenever their maturity allows it, remembering that children today acquire this capacity at an increasingly early age;
(v) in case of conflict of interests between parents' freedom of expression and the protection of personality rights and the best interests of the child, the latter should prevail;
(vi) although there is already legal protection in these matters, access to available defense mechanisms is practically inaccessible to children, so it is necessary to legislate specifically on these matters in order to bring more clarity to the limitations of exercising parental responsibilities, as has been happening in France;
(vii) it is essential, considering the risks we mentioned above, to act preventively, so the greatest investment will be to create mechanisms that can provide families - adults and children - with tools to manage this type of situation and become more aware of the risks involved, such as:
family mediation to facilitate communication on more sensitive topics,
regulation of these matters in parenting agreements, in case of divorce, etc.,
introduction of subjects in schools that discuss the rights, freedoms, and guarantees of each individual and how they can be protected, with a special focus on the main themes present in today's society: internet, social networks, information sharing, bullying, etc.
In our opinion, it is urgent to legislate on these new topics but essentially to pay effective attention to the mental and emotional health of adults who make up society in order to restore their ability to take care of themselves consciously and healthily, so they can also exercise this "parental care" that children so desperately need.
Likewise, there is an urgent need to legislate and implement new educational models, in which teachers will be the main actors, aiming to provide children with knowledge and tools to protect them from cyber risks safeguarding their rights to privacy, anonymity, silence, introspection, and unfiltered life.
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