Posting images of minors on the internet and Art. 6.1 GDPR

Posting images of minors on the internet and Art. 6.1 GDPR

In the digital age, the publication of images on the internet has become very common. However, when it comes to images of minors, there are important legal and ethical concerns that must be considered before publishing images of a minor. Some of the issues related to publishing images of minors on the internet are the following.

What is Article 6.1 GDPR?

The GDPR makes the legitimacy of the processing of personal data conditional on a basis that justifies it. Thus, if the processor intends to collect and process personal data of a minor, it must comply with the conditions set out in Article 6.1 GDPR, which are as follows:

• Explicit consent: The GDPR establishes that the publication of images of minors requires the explicit consent of the minor’s parents or legal guardians. This consent must be free, specific, informed and unambiguous.
• Full information: The GDPR provides that parents or legal guardians must receive full information about the processing of the child’s personal data, including the purpose of the publication of the images and the rights they have over the child’s personal data.
• Protection of vital interests of the data subject or other natural person who is a minor. The GDPR provides that the controller must take appropriate technical and organisational measures to ensure the protection of the privacy of the child. This includes protection against non-authorised access.

What information is considered personal data on minors?

When an image of a person can lead to that person’s identification, the LOPDGDD considers that this image, whether it is a photograph or a video, is personal data, so before publishing it, we must take into account what the regulations say about the use of personal data without the consent of its owners.

When it comes to minors, the same consideration applies, i.e. if the child or children appearing in the images can be recognised, these images are considered personal data and, therefore, it is necessary to take into account the laws that apply to their dissemination and protection, especially as far as consent is concerned, because depending on the age of the minor, this consent can be given either by the minor or by their parents or legal guardians (as we will see below).

What can minors do if their images are published without their consent?

First of all, the child’s parents or legal guardians should be aware that they have the right to request the deletion of the published images at any time. The data controller must provide an easy and accessible way for parents or legal guardians to exercise this right.

In addition, the publication of images of minors on the Internet can lead to legal liability. If a person publishes images of a minor without his or her consent or without the consent of his or her parents or legal guardians, he or she may be held liable for any harm caused to the minor, including psychological or emotional harm. In addition, the publication of inappropriate or explicit images of minors may be considered a serious crime in many jurisdictions.

The need to obtain explicit consent

The GDPR provides that consent given by minors is lawful when the data subject is at least 16 years old. Moreover, consent must be express, which means that a positive action by the child is necessary to obtain consent.

In other words, in order for the minor’s consent to be valid, the minor must be informed of everything related to the processing of his or her data in a clear and comprehensible manner and the consent must always meet the requirements of freedom, information, certainty and concreteness.

However, it should be remembered that the GDPR delegates to the legislations of the Member States to establish a lower age. In Spain, the law that regulates it is Law 3/2018 on Personal Data Protection and guarantee of digital rights, which establishes it at 14 years of age.

Otherwise, publishing images without proper consent may constitute a criminal offence. Some of the legal consequences of publishing images of minors without their consent may include:

• 1. Violation of privacy: Publication of images of children without their consent may be considered a violation of their privacy, which could lead to legal action.
• 2. Invasion of the right to image: Publishing images of minors without their consent or the consent of their parents or legal guardians may constitute a violation of the right to image, which could result in civil penalties.
• 3. Harassment: Posting images of minors without their consent could be considered harassment, which could result in criminal penalties.
• 4. Child pornography: If published images of minors contain sexually explicit or suggestive content, it could be considered child pornography, which is a serious offence and can lead to severe criminal penalties.

In summary, it is important to take appropriate measures to protect the privacy and personal data of minors, and always obtain the explicit consent of their parents or legal guardians before publishing any images or personal information about them. Publishing images of children without their consent may be illegal and subject to civil and criminal penalties in many jurisdictions.