Sharenting - Social media as a family photo album

Children pictures on the net

Thanks to digital devices and social media, there are many ways to share one's life with relatives and acquaintances, and virtually everyone can do so. When not only one's own life is shared, but also that of one's children, this is called "sharenting. The term is made up of the English words "parenting" and "to share.

When sharenting, the online community is given insight into personal moments. Often, the privacy of the child is invaded without the child having been asked. The proud parents unconsciously create a virtual resume of their children with pictures, videos, chats, blogs, etc. The child's privacy is often invaded without the child being asked. Once put online, it is hardly traceable who has insight and control over the corresponding data.

Yet parents are often not sufficiently aware of the dangers of the Internet: cyberbullying, abuse and falsification of recordings, and identity theft are not uncommon online.

The right to one's own image

The constitutional right of informational self-determination, Art. 13 para. 2 BV, provides that every person decides for himself which personal information is disclosed to whom and when and for what purpose. The term personal information refers to all elements that allow conclusions to be drawn about the person concerned. This results in the "right to one's own image" under private law (Art. 28 ZGB), according to which the consent of the person concerned must be obtained both for the creation of the image itself and for a publication, provided that the person in question is recognizable in the images (BGE 129 III 715, E. 4.1). When assessing the recognizability of the person concerned, all circumstances must be taken into account - even in the case of a supposedly anonymous image (e.g. the face obscured by an emoji or a shot taken from behind), identification is often possible through contextual information (caption, person publishing the image, date and location information, etc.).

Between self-determination and custody: the right to the image of the child

The right to one's own image is part of the rights of personality (Art. 28 ff. ZGB) and is available to every person, regardless of age.

In order to be able to exercise this right, the person concerned must be capable of judgment, i.e. able to act rationally (Art. 16 CC). This requires, on the one hand, the capacity for cognition and, on the other, the possibility of action based on this. In other words, the child must (for the assumption of capacity to judge) be able to grasp a concrete situation, to be able to assess the consequences and then to act in accordance with his or her assessment. The ability to judge is relative, i.e. always to be judged with reference to a specific action, and not linked to a specific age.

In the context of consenting to the publication of recordings on social media, I believe that the ability to judge must be assessed in the following differentiated way: lower requirements must be placed on the "rejecting" ability to judge than on the "consenting" ability to judge. This is because children are able to make decisions about self-expression at a relatively early age. They know what makes them uncomfortable or embarrassed and what they feel about themselves with regard to a particular recording (for this, see: study by Kutscher/Bouillon, Schriftenreihe des Deutschen Kinderhilfswerkes e.V., 2018, p. 53 ff.). If a child rejects a recording, and in particular a publication, this may be based solely on his or her own perception, for which no deeper understanding of the circumstances is required. If consent to publication is to be given for a particular recording, however, it must be taken into account that in the context of social media and the technical and legal peculiarities (e.g. terms of use), which are sometimes difficult to understand, as well as the specific risks of the Internet, an increased level of comprehension is required (for more detail see: Fankhauser/Fischer, Brennpunkt Familienrecht, Festschrift für Thomas Geiser zum 65. Geburtstag, 2017, p. 209). Thus, for the same admission, a different measure for consent than for rejection can be applied with regard to the capacity to judge.

If there is no capacity to judge, the right of the person concerned may possibly be exercised by a representative. With regard to the capacity to represent (e.g. by parents), a distinction is made between absolute and relative highly personal rights. The key factor in determining the appropriate qualification is whether it is in the interests of the person lacking capacity to be represented in the highly personal area in question. If the incapacitated person has an interest in ensuring that no one other than him or her can exercise a right, this is classified as absolutely highly personal (e.g. the decision on religious affiliation after the age of 16) and can only be exercised by him or her.

With regard to the right to one's own image, the question of absolute or relative maximum personality must, in my opinion, be assessed on a case-by-case basis, depending on the motive, publication (purpose) and other circumstances, similar to what is done, for example, in the case of medical interventions (for more detail, see: Büchler/Hotz, AJP 2010, p. 565 ff.). However, a more in-depth discussion of this question in the doctrine is still pending (compare also: Fankhauser/Fischer, Brennpunkt Familienrecht, Festschrift für Thomas Geiser zum 65. Geburtstag, 2017, p. 201). By way of legal comparison, it can be noted at this point that the Austrian Supreme Court ruled that consent to the publication of a picture is in principle hostile to representation (Os 176/15v of 13.01.2016) and can thus only be exercised by the person depicted himself.

Within the scope of their parental care, parents are to a certain extent authorized (and obliged) to exercise the relatively highly personal rights of their minor children who are incapable of judgement. In this context, parents make decisions within the scope of parental care jointly, taking into account the will of the child. In the event of disagreement or if the best interests of the child are at risk, the child and adult protection authority (KESB) can always be consulted.

There are limits to the parents' power of representation: decisions must be in the best interests of the child and must be necessary in view of the child's interests. In addition, the power of representation generally lapses if the person representing the child pursues his or her own interests that do not coincide with those of the person represented (Art. 306 para. 3 CC).

Which interests parents pursue with the publication of recordings of their children, and which interests of the children speak for and against such a publication, and whether such a publication can serve the welfare of the child at all, is accordingly the central question of this topic.

Back to the old-fashioned photo album?

The fact that there are legitimate interests of children, or later adults, in visually recording memories (audio) is not disputed here. Children's interest in the process of capturing or photographing/filming can also be multi-layered: not only can they look back on the moment later, but children and adolescents also enjoy social media and the approval they receive there. In addition, the child enjoys the full attention of the person behind the camera at the moment the picture is taken.

However, even against this background, the question remains whether either the child with capacity consents to the recording and publication or the recording and publication is in the best interests of the child without capacity.

Instagram, Facebook and the like are full of children's pictures that are (also) about the parents' interest in presenting their "tough", funny or even "difficult" children. The proud parents show their children eating, sleeping, playing - even sometimes in the outdoor pool, the bathtub or on the playground among numerous other children. Often they do not shy away from depicting the child in "embarrassing" situations in order to make relatives and acquaintances laugh, collect likes and generate views (clicks).

If there are enough clicks, there is the possibility to earn money with the shared children's photos. However, the topic of children's influencers and family blogs is beyond the scope of this article (for more detail, see: Kunz von Hoyningen-Huene /Oberlin, SJZ 118/2022 p. 1138 f.).

However, it has long been known, for example, that a considerable proportion of (child) photos on porn sites and in pedophile chat rooms originate from private Instagram and Facebook pages (cf: Keskin et al, Healthcare (Basel) Journal, 2023 May). Thus, the question arises whether the best interests of the child do not even dictate refraining from sharing children's images online. After all, even inconspicuous images are sexualized by falsification, editing, adding comments and the like.

What does this mean in concrete terms?

A child who is capable of making a judgment has the right to determine for himself or herself whether recordings in which he or she can be recognized may be made and published. The requirements for capacity of judgment with regard to rejection are more stringent than those for consent.

When sharing recordings of children who are incapable of judgement, the children's right to privacy is likely to be violated as a rule. Justifiable consent by the parents as legal representatives is probably excluded in many cases due to the conflict of interests or the absolute maximum personality of the specific right. Even if there are interests in recording memories photographically, the sharing of such recordings is not included in such interests and must be done in the name of the child's best interests.

Does this mean that the sharing of children's photos on social media, "sharenting," must be abandoned? In most cases, yes, for children who are incapable of judgement. Children who are capable of judgement must be asked for their consent, at least in the form of a veto right, whereby the ability to judge with regard to consent must be critically assessed.

Without the consent of the child or the person with custody, the publication of recordings in which the child is recognizable (in the sense of the right of personality) constitutes an unlawful violation of personality rights. This can at most be justified by a law or by the existence of overriding interests (Art. 28 para. 2 ZGB).

If the violation of personality rights is unlawful, the aggrieved person may appeal to the court (or to the KESB). On the one hand, he or she may seek an injunction, removal or a declaration of the violation of personality rights, and on the other hand, he or she may claim damages, satisfaction or restitution of profits (Art. 28a ZGB).

Do we need a ban on children's images on the web?

A general ban on sharing is hardly compatible with reality. In addition, the capacity to judge of the possibly legally consenting children or their legal guardians would have to be examined on a case-by-case basis. This is hardly possible.

However, it is necessary to raise awareness regarding this issue.

Only those who know their rights can exercise them: Children should also be informed about their rights in this area in a manner appropriate to their age. In addition, there is a need for contact points for children, similar to those that exist for cases of other border violations by adults (or other children).

At the same time, parents need to be made aware of the abuses and exploitations that occur on the Internet. Campaigns such as that of Kindeschutz Schweiz "Bilder ohne Bilder"(https://www.kinderschutz.ch/kinderschutz-schweiz/aktuelles/bilder-ohne-bilder) are suitable for this purpose.

I see it as the task of lawyers to take up this issue. Not only in public debates and campaigns - also in the courtroom and with authorities (especially the KESB) the potential danger of children's pictures on the net must be recognized, understood and taken seriously.

For questions regarding the protection of privacy rights, please contact Raël Fein. For questions regarding data protection law, please contact Sven Kohlmeier.