- RIGHT TO PERSONAL PRIVACY AND IMAGE OF MINORS
The image, like honor and personal privacy, constitutes a fundamental right of the person, whether they are of legal age or a minor, as stated in Article 18 of the Constitution. This right is concretized in the exclusive power of the holder to disseminate or publish their own image, being able, consequently, to avoid or prevent its reproduction and dissemination, regardless of the purpose.
The disposition of a person's image (through photos) requires their authorization (arts. 2 and 3 of Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy, and one's own image, and 6 of Organic Law 15/1999, of December 13, on the protection of personal data).
Article 4 of Organic Law 1/1996, of January 15, on the legal protection of minors, considers any use of their image or name in the media that may harm their honor or reputation, or that is contrary to their interests, even if the consent of the minor or their legal representatives is obtained, as an illegitimate intrusion into the right to honor, personal and family privacy, and the minor's own image.
In the case of minors and incapacitated individuals whose conditions of maturity do not allow it according to civil legislation, consent must be given by their legal representative (arts. 3 of Organic Law 1/1982, of May 5, and 13 of Royal Decree 1720/2007, of December 21), with the legal representation of minor children held by both parents, as holders of parental authority.
.- THE DECISION TO POST A PHOTO OF CHILDREN ON A SOCIAL NETWORK BELONGS TO THE SPHERE OF PARENTAL AUTHORITY. IT IS NOT AN EXCLUSIVE POWER OF THE CUSTODY HOLDER.
Parental authority is shared by both parents in most cases, whether they are married, in a domestic partnership, separated, or divorced, thus both parents, in joint exercise of it, will authorize or prohibit such publications, ensuring that the child's interest is protected.
The Supreme Court has stated that, «whenever there is no consent from the parents or legal representatives of the minors in the absence of the Public Prosecutor, the dissemination of any image of them must be deemed contrary to the legal system.
Therefore, in this matter, prior authorization - whether express or implied - from the other parent is always necessary.
Thus, posting a photo of children on a social network is a decision for both parents, regardless of the relationship between them or whether they have exclusive or shared custody.
. WHAT HAPPENS IF THERE IS NO CONSENSUS BETWEEN THE PARENTS ABOUT POSTING PHOTOS OF THE COMMON CHILD?
If a parent is interested in posting photos of a child on social networks and the other parent opposes, they must request judicial authorization, which is done by initiating a voluntary jurisdiction procedure under Article 156 of the Civil Code.
Conversely, if a parent posts photos of a child on social networks without the consent of the other, the parent who has not given their consent may request the court to agree to the removal of those photos, which can also be done by initiating a voluntary jurisdiction procedure under the same Article.
In both cases, the Judge will consider the interest and scope of the publication and, above all, whether the publication is harming the superior interest of the minor or subjecting them to overexposure.
. MINORS OVER 14 YEARS OLD.
Article 13.1 of the Royal Decree 1720/2007, of December 21, approving the Regulations for the development of Organic Law 15/1999, of December 13, on the protection of personal data establishes that: «1. The processing of data of those over fourteen years of age may proceed with their consent, except in those cases where the Law requires the assistance of the holders of parental authority or guardianship for its provision. In the case of minors under fourteen years of age, the consent of the parents or guardians will be required.»
CONCLUSIONS/RECOMMENDATIONS
For all the above, from the Azucena Librán Legal Office, we recommend that both parents obtain prior consent from the other before uploading content of the minor to the
