Posting pictures of minor children on social networks: is it discouraged or prohibited?

Posting pictures of minors on social networks is highly discouraged.

For years the Italian National Police has being trying to make parents aware of this matter, warning them about the dangers connected to online pedo-pornography.

It should be considered that over half of the pictures contained on pedo-pornographic websites comes from social media. The images innocently shared by users are transformed into pedo-pornographic material and made public through illegal virtual spaces.

But is the behavior of the parent that publishes an image of their son on social media also prohibited?

On this matter, the Italian jurisprudence has intervened on several occasions stating a firm principle: the diffusion of a picture of a person is illegitimate if it lacks the consent of the interested party. This principle results from many rules safeguarding the right of personal portrayal as a personality right protected by the Italian Constitution (art.2), by the copyright law (art. 96) and by the Civil Code, as well as by the current legislation on privacy (art. 4, Reg. EU 679/2016).

The corollary of this principle is the necessity of the consent of those exerting the parental responsibility on the minor for the diffusion of the pictures that portray him/her, or of the minor if they are themselves able to judge.

Concerning this last aspect, it should be remembered that the jurisprudence recognizes wide margins of self-determination to minors that are 16 years old, and, in some cases, also 14 years old (the age required for the so-called Digital Consent, related to services of the information society).

Nulla quaestio, thus, if the minor expresses a clear and conscious opposition to the diffusion of the images that represent him/her. In such cases the diffusion will be illegitimate even if carried out by a parent.

In the case of minors unable to judge, the diffusion will be illegitimate not only when there is not the parents’ consent but also when only one of them opposes the publication. This conclusion was recently reiterated by two sentences of trial judges.

In the first case, with sentence of 19th September 2017 the Court of Mantua censured the behavior of a mother who published on social media pictures of her son despite the strong opposition of the father. The Judge, reminding of the dangers already mentioned, considered that the prejudice of the minor is inherent in the same online diffusion of the image, requesting the immediate removal and abstention of further publications.

The Court of Milan, with sentence n. 4379/2020, has recently reached the same conclusion. The case still concerned the publication of a minor’s image by the mother without the consent of the father, and even on this occasion, it was ordered the removal with inhibitory.

However, in this case the Judge stated that the publication, ex se, is not always and in any case prejudicial for the minor as it “may well show publicly a minor in relaxed situations, positive for the child, even festive. In these cases, the publication of the image is perfectly lawful, there is not any danger for the development of the minor and any reason to refrain from showing a nice picture”.

Even agreeing on the conclusion stated by the Judge of Milan, the statement above mentioned needs a further consideration.

Even if there is the consent, the diffusion of images portraying the minor – as “beautiful” and “festive” as they could be – could nevertheless affect his/her quiet development if it translates in the spectacularization of the child’s existence. And this is not only for the risk, most certainly concrete, of the use of the child images for criminal actions, but mainly for the protection of the constitutional right of the minor to build a personal identity in full freedom and regardless of interferences from others, parents included.

When habits, reactions, behaviors, expressions and preferences of the child are constantly exhibited on social media, a representation of the child personality carved by the photos of the parent is offered to an endless audience of subjects, a personality that could not correspond to the sense of self that the minor will develop during his/her growth.

Getting likes could hardly be considered more relevant than the right of the child to build his/her own identity.