IS THERE A LEGAL SOLUTION TO PARENTS POSTING EMBARRASSING PICTURES OF THEIR KIDS ONLINE?
Last year, Austrian news ran a story about an 18-year-old woman who was suing her parents for making her life “a misery” and violating her privacy by posting hundreds of photos of her, taken throughout her childhood, on Facebook without her consent. This interesting case raises several questions.
While this has never happened in Canada, could it? Further, outside of strict legal possibilities, what other questions about general family dynamics does such a case raise?
The woman, who was not named due to Austrian privacy laws, claimed that she had repeatedly asked her parents to remove the images of her from Facebook, but they had refused. She decided to take action as soon as she turned 18.
She claimed that over the years her parents had posted over 500 images of her on the social media site, and that the images were shared with their 700 Facebook friends. The photos included baby pictures of her having her diaper changed, and later, potty training.
The woman told reporters that her parents “…knew no shame and no limit — and didn’t care whether it was a picture of me sitting on the toilet or lying naked in my cot — every stage was photographed and then made public.”
Despite her repeated requests to her parents to remove the photos, her father refused, arguing that he had the rights to the photos since he had taken them. The refusal prompted her lawsuit, with the woman saying that she was “tired of not being taken seriously” by her parents. She sought financial compensation as well as a court order mandating her parents to take the photos down.
This was the first such reported case in Austria, and it reignited debate about the sharing of photos of children online. While there were originally some doubts about the truth of the story, updates about the case were later published in German language press. It is not clear what the final outcome of the decision was.
PRIVACY LAWS AND ONLINE IMAGES
Laws on posting images of children online vary widely across jurisdictions.
Austria’s privacy laws around social media and online activity are not as rigid as those in some other countries. In France, for instance, publishing and distributing images of another person without their consent can result in a fine of up to €45,000 (about $67,000) and potential jail time. This would apply to parents publishing or sharing images of their children as well. French authorities have repeatedly warned parents against posting certain images of their children online, arguing that the children could fall victim to sexual predators, and face social and psychological problems in later life as a result of embarrassing images being widely disseminated.
A recent survey in the U.K found that the average parent will have posted almost 1,500 photos of the child on social media by the time that child was five. In addition, 85% of parents had not reviewed their Facebook privacy settings in more than a year, and 79% had incorrectly assumed that strangers could not see or access photos of their children.
There was even a recent movement in the U.K. to establish the “iRights plan”, which would place online delete buttons on websites to provide children under 18 with an option to remove their photos from social media. The woman who proposed the plan told reporters that “the problem is we have designed an online world without children in mind.”
WHAT MIGHT THIS MEAN IN CANADA?
Here in Canada, there have also been efforts to address the sharing of online images without the consent of the person in the image. In March 2015, the criminal offence of non-consensual distribution of intimate images came into force.
The offence largely targets cyberbullying, “revenge porn”, and other instances where nude or intimate photos of adults and youth are shared without the consent of the person depicted.
However, it is not immediately apparent that this provision could not also apply to a situation such as the one in Austria. It remains to be seen whether this Criminal Code provision could be used by a child in a claim against their parent. A policy argument could be made in favour of such an approach, particularly since the Canadian Government has recognized that the effect of distributing images without the depicted person’s consent, is “a violation of [their] privacy in relation to images, the distribution of which is likely to be embarrassing, humiliating, harassing, and degrading or to otherwise harm that person”, a description that could also be applicable to a situation like the one in Austria. There is certainly no general restriction in Canada on children suing their parents, and several have done so in other contexts.
FAMILY DYNAMICS IN A DIGITAL AGE
From a non-legal perspective, the Austrian case raises questions of family dynamics in the digital age. More than ever, photos are easy to take, store, and share. High resolution, good quality photos can be taken with phones, and just as easily and quickly posted online. There is no longer a need to wait for a roll of film to be developed, or to save photos for special occasions and events only. This can impact children in ways that parents in previous generations never even had to think about, such as whether they should be considering what trail they are leaving of their children online, or whether a child will eventually have to manage the impact of an embarrassing digital footprint. Further questions arise about whether children should have a say in what their parents post about them online.
This can impact children in ways that parents in previous generations never even had to think about, such as whether they should be considering what trail they are leaving of their children online, or whether a child will eventually have to manage the impact of an embarrassing digital footprint. Further questions arise about whether children should have a say in what their parents post about them online.
If you would like to discuss managing challenging family dynamics within the context of family law, contact experienced Windsor family lawyer Jason P. Howie at 519-800-1039 or online. Jason has been a fixture of the family law community of Windsor and Essex County for over 25 years, and has helped hundreds of clients.