Banning Children’s Image Online—a Portuguese Perspective

Abstract

The questions raised by the reality of parents sharing photos and personal data of their children online, particularly in social networks, are now widespread. In today’s globalized world, the issues posed by the use of social networks (its risks, dangers, but also advantages) are fundamentally the same. And, at least in the European context, there are common backgrounds in terms of of legal culture and of the protection of human rights afforded by international organizations and their instruments, the way parental responsibilities and children as subjects of their own rights are regarded. However, how each country and each legal system puts the same legal principles into practice may differ particularly in the field of family relations and personal rights. In this chapter I intend to present the Portuguese perspective on the public display of children’s image, particularly online, resorting to the analysis of case law in order to reach a more accurate picture of the law in action.

1 Introduction

The questions raised by the reality of parents sharing photos and personal data of their children online, particularly in social networks, are now widespread. In today’s globalized world, the issues posed by the use of social networks (its risks, dangers, but also advantages) are fundamentally the same. And, at least in the European context, there are common backgrounds in terms of legal culture¹ and of the protection of human rights afforded by international organizations and their instruments, the way parental responsibilities and children as subjects of their own rights are regarded—most notably that which has been provided by the United Nations Convention on the Rights of the Child (UNCRC) and the European Convention on Human Rights (ECHR).

However, the way each country and each legal system puts the same legal principles into practice may differ particularly in the field of family relations and personal rights. Therefore, even though the goal of addressing a specifically Portuguese perspective might seem difficult to achieve, an analysis of our courts’ case law may provide us with a more accurate picture of the law in action.

2 The Public Display of the Child’s Image—then and Now

2.1 Then – the Lisbon Court of Appeal Decision from October 19, 1977, or “My Face is on a Billboard!”

In order to fully understand our starting point, it is helpful to take a retrospective look at the first instances of Portuguese courts considering the public display of the child’s image and how the best interest of the child was (or was not) addressed.

In 1977, the Lisbon Court of Appeal² had to decide a case that dealt with the use of a child’s photo in a political propaganda billboard. The story began when, during a school festivity, which was attended by several people, a group of children was photographed in the school’s courtyard. Six years later, the Portuguese Communist Party accessed those photos and used one in a propaganda billboard with the following motto: “The sun will shine on everyone”. The mother of one child, as his legal representative, filed a petition, thereby suing the Portuguese Communist Party. She argued that since no authorization had been given to publicly display her child’s image, his personality rights had been violated. According to her, this could result in severe consequences for her son—someone who was quite apart from the Communist Party’s ideologies. She demanded the destruction of the billboards as well as compensation for moral damages. The Lisbon Court of Appeal ruled that such use of her child’s photo in the billboard did not require any kind of consent, given the public context (a courtyard during school festivities) in which the photo had been taken. It considered that since the parent (the mother) had authorized the child’s participation in the event, and since she knew there would be photographic coverage, no additional consent was needed. The decision’s legal basis rested in Article 79, no. 2 of the Civil Code which, at that time (as it does today), dismissed the need for consent in several cases: (i) whenever justified by the notorious nature of the portrayed person, their activity, or the demands of police, justice, scientific, or cultural goals, (ii) as well as whenever the reproduction of the image is in the context of public locations, of facts of public interest or of facts that occur openly. Additionally, as far as the Court could tell, the child had been portrayed within a group of other children, and the photo was not recent. Therefore, it was difficult to recognize the identities of those portrayed. The Court found that no relevant moral damages should be considered, as, in their opinion, a 13-year-old child had neither “the dignity and the conscience of the facts that cause a moral damage” nor a political conscience, whereby his honor, reputation, and good name could not be affected.

At first glance, it is a surprising reasoning; however, we must bear in mind the socio-historical and legal context of this case.

The decision was rendered in October 1977, only three years after the Revolution of April of 1974, which had overthrown a dictatorship that had lasted for almost 50 years. In the previous year, the Constitution of 1976, a new constitution, had been approved. The Portuguese Constitution enshrines a catalog of fundamental rights and freedoms, including personality rights—among which the right to one’s own likeness and image as well as the right to privacy³—and political freedoms.⁴ In 1977, the Civil Code was also reformed and adapted to the new Constitution.⁵ While it was approved in a month’s time, many of the principles that had been included in the Constitution were already in force. Furthermore, the rules of the Civil Code that protect those rights—the right to one’s own likeness and image and the right to privacy (Articles 79 and 80 of the Civil Code)—were not subject to any update and remain the ones in force today.

This framework reveals that legal grounds for protecting the child’s right not to have his/her image used in such a public way (and associated with a political view) could already be found in the Portuguese legal system. However, by that time, the political discourse was at the center of social concerns. The guarantee of social political fundamental rights as the freedom of expression was a major issue and thus protecting these kinds of personal rights—and those of a child for that matter—did not seem as paramount.

Therefore, this verdict was (i) that a third party—an organization not connected to the child in any way—was authorized to use the child’s image for its own political purposes; (ii) that such authorization was independent of explicit parental consent (much less of the child him/herself), a dismissal of consent which the Court grounded in an evaluation of the “public nature” of an event that could easily be contested; (iii) that the child, as a subject of his own rights, is to be more than ignored (the child is expressly diminished as a holder of rights that might be affected by the use of his/her own likeness); and that (iv) the role of the parent (a single widowed mother) in this instance was to act as a representative of the child in the procedure, exercising her duty to protect the right of the child (included in the then-named “paternal power”). She pled to the Courts (the state) for the protection of her child from an organization, but it was not granted.

2.2 Now—the Évora Court of Appeal Decision from June 25, 2015, or “My Parents Keep Posting My Pictures on Instagram!”

Since 1977 and the Lisbon Court of Appeal’s decision, the Portuguese framework has undergone profound changes, both from a social and legal point of view.

At present, the technical possibilities to display a child’s image (or anyone’s image) are far more powerful and uncontrollable than a billboard. Indeed, the most recent surveys show that about half of the Portuguese population is currently using social networks in a fairly active way.⁶ And since these channels are so easily available to every private citizen, they, and especially those inside another user’s inner circle, have access to more and more sensitive information. In our case, the child’s parents are the ones who are more likely to exhibit their image and share their personal data online.⁷ Hence, “sharenting”—a combination of “sharing” and “parenting” that encompasses the ways through which parents distribute pictures, videos, or other information about their children online, particularly in social networks⁸—is one of the biggest present challenges when it comes to exposure of the child.

From a legal point of view, the judicial system, under the Constitution of 1976, particularly family law, has not ceased to evolve according to the developments of the theory of fundamental rights⁹ and the challenges of new realities. As far as the rights of the child and the exposure of the child’s image are concerned, two legal landmarks have since taken place: In 1990, the Portuguese state ratified the United Nations Convention on the Rights of the Child (UNCRC),¹⁰ and in 2018, the General Data Protection Regulation (GDPR) entered into force in all European Union Member States. Moreover, the role of courts as gatekeepers of constitutional principles and fundamental rights, particularly those of vulnerable subjects, grew stronger.¹¹

When addressing the issue of children’s images online and sharenting, we find ourselves at the crossroads of how Portuguese law and courts understand several issues: (i) the role of social networks, particularly in the context of family; (ii) how this role connects with the child’s personality rights, namely the right to privacy and the right to one’s own likeness; (iii) the understanding of the child as a subject of his/her own rights (rather than an object of the parents’ powers) and a holder of a special interest that is at the center of the legal discourse, which has implications both in the way we perceive the capacity of the child to consent regarding his/her own personality rights on the one hand, and the exercise of parental responsibilities, on the other;¹² and finally, (iv) the role of public entities (namely courts) in controlling and ultimately limiting parental responsibilities.

The core of my analysis is the 2015 landmark decision by the Évora Court of Appeal,¹³ and it focuses on the regulation of parents exercising responsibility over their child(ren). This is not the sole decision that concerns itself with the exposure of family life in social networks.¹⁴ It is also neither the only one about the image of a child online¹⁵ nor the only one in which issues raised by sharenting are addressed. Actually, both the Coimbra¹⁶ and Lisbon¹⁷ Courts of Appeal have rendered verdicts on two situations in which one of the parents identifies sharenting as a negative feature of the other’s parental behavior in claims related to the exercise of parental responsibilities; furthermore, in 2017, the Coimbra Court of Appeal considered a case in which parents included “banning sharenting” as part of their parental responsibilities divorce agreement.¹⁸ The decision of the Évora Court of Appeal from June 25, 2015,¹⁹ however, is the one that directly addresses sharenting, a decision in which the Court decides and imposes a regime—a ban—on the parents.

This decision stemmed from the appeal of a verdict of the first instance Court of Setúbal on the provisional regulation of the exercise of parental responsibilities in a case in which a child’s parents could not reach an agreement. Social reports evaluating the family environment concluded that there was a high level of conflict between the parents that had impacted the child’s life, but no other details of their lives were mentioned in the decision. The Setúbal Court determined a standard regime of exercise of parental responsibilities²⁰ (regarding residence, duties to inform, contact, and child support obligations), except for the last order, which addresses sharenting directly in the following terms: “parents shall refrain from publishing photos or personal data that render their child identifiable on social network websites”.

Subsequently, the mother (plaintiff) decided to appeal to the Évora Court of Appeal (second instance court). She claimed that the issue of misusing the child’s photos or personal data on social network platforms had never been raised and that the decision had not been grounded on any evidence. The public prosecutor,²¹ however, argued in favor of the first instance court’s decision, and the Évora Court of Appeal ultimately decided to reject the appeal, thereby confirming the previous decision.

The Court held that there was no need for a specific factual ground for such a court order, since it is a duty of the parents—one as natural as the duties to take care of the health of, support, and educate the child—to protect the rights of the child, namely to their own image or likeness and to privacy (Art. 79 and 80 of the Civil Code). Additionally, it was expressly highlighted that children are not commodities or objects that belong to parents, but rather subjects of their own rights, and that parents must not only protect their children but also promote and respect their rights. The Court concluded by declaring that this is the way that parental responsibilities must be understood—as rights and duties that must fulfill the best interest of the child and foster the child’s harmonious development. But it likewise stressed that not only parents must act towards this objective. The Court of Évora identifies the institutions and the state as partners in this mission.

The central argument reinforcing the measure is the fact that exposing the child on social networks poses serious risks to the child’s safety, namely risks of sexual exploitation and sexual violence, even though it can be argued that such dangers are sometimes overestimated.²² In order to justify such concerns, this reasoning summons an array of international instruments, such as the United Nations Convention on the Rights of the Child (UNCRC),²³ the International Labour Organization’s Worst Forms of Child Labour Convention,²⁴ several Council of Europe instruments, the European Convention on Human Rights,²⁵ the European Social Charter,²⁶ the Lanzarote Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse,²⁷ and the European Parliament and Council’s Directive 2011/93/EU from December 13, 2011, on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography.

All these documents are mentioned in order to justify the existence of a “serious and real danger” that stems from publishing children’s photos and personal data on social networks. The Évora Court of Appeal adopts three premises to ground a presumption of “real danger”: (i) that such publication may seriously and permanently expose the privacy and the safety of children, (ii) that the exponential growth of social networks allows predators to gather information and target children as victims of their crimes, and (iii) that young people may be lured into situations of sexual exploitation due to their lack of experience.

Therefore, the measure and the court order were justified primarily by the need to protect the safety of the child, which is to prevail over the freedom of expression and the prohibition of state interference in the private life of citizens, in this case the mother.

Two issues are raised in the appeal (lack of legal and factual grounds for the decision), but our analysis must go further:

This decision was made in the context of regulating the exercise of parental responsibilities—a complex of both powers and duties that parents will exercise on behalf of their minor child, and according to their best interest, in order not only to protect them, but also to promote their autonomy. Indeed, Portuguese law recognizes the evolving nature of the child’s capacity and supports that, according to the child’s maturity, their opinion should be taken into account in family matters and their autonomy must be recognized in the organization of their own lives (Article 1887 of the Civil Code).²⁸ Parents are therefore responsible for protecting the child’s safety and sharenting may put it at stake. Parents exercising their freedom of expression by posting the child’s data certainly create a risk in the child’s sphere. The Court assumed that the regulation of these matters was a similar decision to those concerning education or support obligations, and this way, it ensures that parental responsibilities are properly exercised in accordance with the best interest of the child and not that of the parents.

In order to fully understand this decision, it is necessary to mention that the current regime of the exercise of parental responsibilities, which, inspired by the Principles of European Family Law Regarding Parental Responsibilities by the Commission of European Family Law (CEFL),²⁹ was extensively reformed in 2008,³⁰ revolves around two concepts. When parents do not lead a common life³¹—be it marriage or a de facto union—the rules on the exercise of parental responsibilities draw a distinction between matters of particular relevance, in which the rule is the joint exercise of parental responsibilities, and daily life decisions, which are decided by the parent whom the child is with at the moment (be it the resident or non-resident parent).

When it comes to sharenting, the fact that it may be part of a routine could lead us to classify it as a daily life decision. However, it may have severe implications in terms of the child’s (fundamental) personality rights—one of the criteria that may be used to identify “matters of particular relevance”.³²

Thus, the Court has decided to create a “precautionary rule” (risk-based),³³ an obligation to refrain from sharing such content (a decision beyond the possibility of the parents to agree otherwise).

It is interesting to note that the Évora Court has created a blind rule: There is consideration of neither levels of exposure nor the kind of social networks that are at stake.³⁴ It is also important to realize that safety issues were the basis of the decision—as far as I know, even in the absence of a factual red flag regarding this matter. While it is true that the child was identified as a subject of his/her own rights,³⁵ the problem—per se relevant—of exposing the child’s image was not highlighted autonomously.³⁶ The option of the Court has been to rely on a precautionary principle regarding the protection of the child’s data and to impose a ban, instead of a tailored measure,³⁷ probably more suited to meet the requirements of proportionality that the restriction of rights encompasses.^{38 39}

The reference to the child as a subject of its own rights has consequences that should be considered and that assume a different shape depending on the age of the child.

The analysis of this case according to the age of the child presents an unexpected twist. Indeed, the version that was published on the official website refers to a child born in 2003, making the girl twelve -years-old at the time of the decision. The same happened with the decision of the Court of Setúbal (first instance). However, this could be a typing error, since in the analysis of the first instance court, documents suggest that the child was born in 2013—whereby the child would be a two-year-old girl who still attends nursery school.⁴⁰

In the case of a two-year-old child, the presence of a toddler’s image in social networks is dependent on the adults’ (the parents’) actions. If we were dealing with a pre-teen, then it must be borne in mind that social networks are an essential part of their socialization process.⁴¹ And the decision is solely focused on sharenting. It addresses neither the duties regarding the control of the photos uploaded by the child, for instance, nor her capacity to freely limit the right to her own’s likeness by participating herself in social networks or authorizing her parents to do so.⁴² In this case, it should be mentioned that, under Portuguese law, even though there is not a system of levels in terms of capacity⁴³ and a person only reaches majority at 18, the theory of evolving autonomy is expressed by the law (Article 1878 of the Civil Code)⁴⁴, which is relevant for this purpose.

Finally, there is another option that should be highlighted: the fact that the Court decided to set aside the prohibition of state interference in the private life of citizens. The interference is assumed motu proprio, since the Court decided on a question that had not been specifically raised by any of the parents.

This initiative is coherent with the present growing trend of public entities intervening in order to protect the child, and it is allowed on a procedural level since the regulation of parental responsibilities is a non-contentious proceeding, which allows the judge to decide beyond the scope of the action. It must also be stressed that the public prosecutor’s office, as the ultimate representative of the child, plays a pivotal role in this context, promoting this regime, in the absence of agreement between the parents.

2.3 Now—the Super Nanny Case, or “My Tantrum is on TV!”

More recently, Portuguese courts have been confronted with a very public case that can also provide us with precious insights into the Portuguese courts’ approach to the use of the child’s image, even though the challenges raised by social media are not at the case’s core. The Super Nanny Case has been the object of several decisions, including ones of the Lisbon Court of Appeal,⁴⁵ the Portuguese Supreme Court,⁴⁶ and the Portuguese Constitutional Court.⁴⁷

In this case, the public prosecutor’s office intervened as representative of several children featured in the reality show Super Nanny, a television show about parents struggling with their children’s behavior who receive child-rearing instructions from a professional nanny. The public prosecutor requested that broadcasting the show be prohibited—not only on television, but also on social networks and streaming services—so as to guarantee that the show’s content would not be publicly available, since it violated the personality rights of the children. The television network that owned the show’s rights argued, in turn, that it acted under a “participation agreement”, signed by the children’s parents, which allowed their children’s image to be broadcast and thus also limited the latter’s privacy.

Among the several issues raised by this case—some very relevant that concern the demands to participate in public shows and copyright—it is possible to understand the current position of Portuguese courts regarding the image of the children, the role of parents, and the role of public institutions as far as their protection is concerned.

This case deals with the use of these children’s images not by the parents, but by a third party, a television network, authorized by the parents. It was claimed that the right to one’s own likeness may be lawfully limited when there is consent—consent that had been provided by the parents (Article 79, no. 1 of the Civil Code) and that also covered the right to privacy (Article 80 of the Civil Code). The Lisbon Court of Appeal, however, opposed such claims by clearly adopting the theory of the evolving capacity of the child, expressly stating that as far as the limitation of the right to one’s own likeness is concerned, whenever children have sufficient competencies and maturity so as to evaluate the consequences of their consent, they should decide rather than being represented by their parents.⁴⁸ It has thus embraced a case-by-case approach, choosing not to specify any age limits, in conformity with the legal standards established in Article 1887 of the Civil Code, even if this solution still leaves an open question: Is parental consent still needed when the limitation of rights is severe as to contend with the education they provide?

The following step, however, is not traditionally embedded in Portuguese family law. According to the Lisbon Court of Appeal, whenever the child does not exhibit sufficient competencies and maturity so as to evaluate the consequences of consent, the parents should not decide autonomously. Instead, it is proposed that they obtain approval from the public prosecutor’s office for their project of consent (with the possibility of appealing to the Court).⁴⁹ The role of the public prosecutor’s office is stressed throughout the decision: It is stated that in the cases in which there is a conflict between the best interest of the child—risks to the free development of the child’s personality and risks of being bullied have been identified—and the interests of the parents, the public prosecutor’s office assumes the role of the child’s representative (Article 1881, no. 2, of the Civil Code and Article 23 of the Civil Procedure Code).

The Portuguese Supreme Court has confirmed the Lisbon Court of Appeal’s decision, namely to ban the show’s broadcasting without prior authorization by the Commissions of Protection of Children and Adolescents in Danger⁵⁰, as required by the law.⁵¹ Nonetheless, it is interesting to point out the differences in the path chosen. Central to the Portuguese Supreme Court’s argument has been the value of human dignity.⁵² It has stressed that human dignity is put at stake when people—children, in particular—are objectified and used as an instrument towards an end. It concludes with the same idea of irrelevance of the consent given in this context to allow for restrictions to personality rights, for being contrary to the ordre public. The Portuguese Supreme Court answered the question of the Lisbon Court of Appeal regarding the capacity of the child to consent. Indeed, it states that, even when the child is naturally competent to consent, parents must still intervene, by exercising their parental responsibilities, when the decision interferes with the former’s education.

Finally, the decision of the Portuguese Constitutional Court ascertained the constitutional conformity of the legal demand of authorization provided by the Commissions of Protection of Children and Adolescents in Danger for children to participate in television shows.⁵³ It does not focus directly on the right to the child’s own likeness—the decision to protect the child is rather focused on the perspective of child labor and its exceptions⁵⁴—but sets a position regarding the right of parents to educate their children (Article 36, no. 5 of the Portuguese Constitution). The Portuguese Constitutional Court admits that the interests of parents are not always the best interest of the child, and that the (proportional⁵⁵) intervention of public entities is allowed whenever there is a “serious risk”⁵⁶ that parents do not fulfill this best interest.⁵⁷

3 Final Remarks

The analysis of these three important cases—in particular the Évora Court of Appeal’s 2015 case—may serve as indicators that allow us to start sketching a Portuguese perspective on the public display of the child’s image, especially on social media, that is embedded in the inherent tension between what is private and what is public in several senses.

First and foremost, the central position of children and their personality rights (including the right to one’s own likeness) and the need to protect them is a clear feature of the present scenario. The traditional protectors of children’s rights are still the parents, who, when exercising parental responsibilities must determine the best interest of the child and act accordingly. However, sometimes new realities—including new channels of expression provided by social media networks—create challenges to parents, who may not be able to correctly deal with them on their own.

These recent cases point towards a more active intervention by public entities (courts and public prosecutors offices) when the protection of children (and the promotion of their autonomy) is at stake.

This intervention by public entities in the protection of children’s rights is not new. In cases of conflict of interest, there has traditionally been a compression of the parents’ rights and powers and the child’s representation has been assumed by a public prosecutor’s office.⁵⁸ In case of danger to the child, Commissions of Protection of Children and Adolescents in Danger could act with the agreement of the parents, and ultimately the court would intervene.⁵⁹ Nevertheless, the decisions we analyzed led us further. The case of the Évora Court of Appeal shows us that public entities (courts and also public prosecutors) can intervene before any actual conflict, before any actual danger. We are facing an upsurge of precautionary interventions that interfere with family life based on the concept of risk. Underlying this approach may be the assumption that social media networks are much too dangerous instruments for (some) parents to deal with alone⁶⁰, and the idea that protecting the child against the parents perceives the family as a scenario of “conflict of interests” even before one actually emerges.

Fundamental rights—and (fundamental) personality rights included—were first conceived as a shield of individuals against the state.⁶¹ At the present, it seems that the state is using this shield to protect individuals against other individuals⁶² within one of their most private spheres—family—based on the recognition that these are especially valuable and especially vulnerable individuals. Hence, there is tension between public and private, and protection and autonomy, that must be addressed.

Hopefully, we will not forget that these concerns indeed stem from the idea that children are subjects of their own rights and that the use of social media networks is a central component of their social life, and of youth culture, all of which means we need also to ensure that they exercise their rights to participation in a safe, but also free way.