How embarrassing!” Children often have a different perception when they see a photo of themselves than their parents. What they think is “cute” is sometimes unpleasant for their son or daughter. For this reason, many children have secretly taken photos of themselves from the family album and disposed of them. But what if parents have shown the image to others online, emailed it via WhatsApp, or published it on Facebook or Instagram? There is a separate term for this – sharenting – but what happens if the children do not agree to it is anything but straightforward.
Katharina Starz is investigating the phenomenon from a legal perspective. For this, she is supported in her doctoral project as part of the bidt doctoral researcher programme. For lawyers, the question is to what extent the publication of millions of children’s photos worldwide via social media is legally permissible.
“Primarily, it’s about the child’s right of personality,” says Katharina Starz, a research assistant at the Chair of German and European Legal History, Canon Law and Civil Law at the Julius Maximilian University of Würzburg. If the child cannot exercise this right, the parents must exercise it for their child. But if they now like to post photos of their child themselves, there could be a conflict of interest:
What is fundamentally new about the phenomenon of sharenting is that when parents use social media channels, they consent to dispose of their child's personal rights and publish photos of their child online.
Katharina Starz
Katharina Starz faces the challenge of working out legally whether or under what conditions parents can be granted this authority. To do this, she works through various case constellations: Is the child alone in the photo or with the family? Is the child shown from behind or from the front, and is their name linked to it? Is the photo forwarded via messenger like WhatsApp or published on Facebook? And is it just about sharing a new image with family and friends, or is the child being established as an influencer to earn money by marketing their social media channel?
Sharenting is widespread. Eighty-two per cent of parents who use social media have already shared photos, videos or other information about their children with others. This was shown in a report by the US research institute Pew Research Center, for which adults in the USA with at least one child under 18 were surveyed in March 2020. According to the report, most are not worried their children could ever be offended by the published photos. For Europe, a survey commissioned by the online company AVG Solutions showed in 2010 that 73 per cent of children under the age of two had left a digital footprint. Parents in Germany, Italy, France, Spain and the UK were surveyed.
Despite the popularity of sharenting, there is no clear guidance for parents to follow when posting photos of their children online and a corresponding lack of knowledge. “Most parents assume they can post a photo because they are a mother or father. This is usually done without any forethought,” is Katharina Starz’s impression. Legally, such constellations are challenging to clarify in case of doubt. This is because publishing private photos in the new media by parents is so easy to do on the one hand. Still, on the other hand, it can have such complex consequences due to the characteristics of digital technologies.
Katharina Starz often resorts to comparisons with the analogue world to illustrate the problem: Whoever sticks children’s photos in the album and brings them out to show them on the occasion of a family visit “remains in control of the album and the photos. I can show it around but don’t lose control over it.” When posting on social media, on the other hand, one relinquishes control.
Once a photo is on the internet, it is usually there forever, can be copied at will by third parties and misused for other purposes. The risk is always there online, even if a photo is initially published in a small circle.
Katharina Starz
In cases where the child’s right to personality is so strongly affected that the publication of photos is inadmissible, parents would even have to reckon with claims for damages if their children ever sue them. In case of doubt, parents could be liable to prosecution.
By the way, children are not allowed to publish their photos just like that, even if this is standard practice on channels like TikTok, which are very popular with children: “It is very controversial at what age children are allowed to decide for themselves. Some draw the line at 14, but some say from 16, others only from 18 when they come of age.”
From a legal point of view, the problem of sharing is not limited to photos. The use of digital technologies such as voice systems that record private conversations or tracking apps that record whereabouts could also affect children’s privacy rights. But these are questions that go beyond Katharina Starz’s work. She will have “a thousand differentiations ” just for children’s photos disseminated via social media because it is such a broad field. I will try to cover approximately the most important cases.” Until then, the only good advice for parents is to think twice about whether posting a photo of their child is a good idea.
bidt dictionary: Sharenting
Sharenting is a neologism. The term comprises the English verb “to share” and the English noun “parenting”.
It describes parents sharing photos, videos or other information about their children on social media and thus making them accessible either to a limited or to the general public, whether for private reasons or commercial interest. From a legal perspective, the question arises to what extent this affects the child’s personal rights. For example, the right to one’s image and the right to informational self-determination play a role.
