Sharenting: Shaping Social Media Responsibility

In the age of digitalisation and sharing, the concept of image and image right are topics becoming increasingly discussed. As we know, image right is a fundamental and inalienable right that is protected both by national and European laws. Legislations, already very stringent, becomes particularly detailed when it comes to image rights of minors: for example, the Article 6 of the 2018 General Data Protection Regulation (GDPR) on the age limit for consenting to the transmission of personal data and the Article 17 on the right to demand erasure of data within a reasonable delay (that parents exercise until their child reaches the age of majority), are setting out a general framework for each Member State of the European Union. And more broadly, at international level, Article 16 of the 1989 Convention on the Rights of the Child on the protection of the private life of the child. As this right to privacy goes hand in hand with the right to an image.

Since the rise of social media, more and more countries around the world are seeking to regulate the use made of one’s image, particularly for the youngest who are the most vulnerable on social media platforms.

It is in this context, that the French General Assembly unanimously adopted a bill on the protection of minors’ image rights in relation to their exposure on social media. The aim of this 5-article law is to make all parents more responsible. Indeed, with an obligation to be vigilant and protect their underage children, particularly in view of the phenomenon of “sharenting”, the law reminds us that children have their own rights and that parents are not the only holders of these rights. A particular feature of this new law is that it introduces the notion of privacy into the definition of parental authority, as well as extending the scope for legal action. The Family Affairs Judge, in the event of abusive use of the child’s image that ultimately prejudices them, third parties may also refer cases to the judge. The Judge could then suspend and delegate parental authority to a third party.

On a comparative perspective, in Italy, the agreement of both parent is already required for the publication on social media content in which children appear up to the age of 14. Hence why on the 17th of October in 2022, the Court of Rieti ordered the aunt of underage twins to pay €5,000 of damages and interest to their father who had sued her for sharing over 50 pictures of them without his consent. The law therefore applies equally to parents and third parties.

It remains to be determined whether, in the event of abuse of a minor’s image rights by one or both parents, the judge will proceed to withdraw parental authority as it is now possible in France