Guaranteeing Respect for Children’s Image Rights: An Illusion of Protection?

by | Jun 18, 2024

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About Samira Allioui

Samira is an Associate Professor and Research Associate at the Centre d'études internationales et européennes de l'Université de Strasbourg. Her PhD examined the right of access to the European Judge since the entry into force of Protocol n°14. Previously, Samira studied IHRL (Lyon/Montreal) and holds a degree in Comparative Law (Lyon). Her areas of research covers questions relating to admissibility requirements before international courts and several aspects of international adjudication more broadly.

Law n° 2024-120 dated 19 February 2024, related to guaranteeing respect for children’s image rights, modifies several articles of the French Civil Code relating to parental authority. It aims to better protect the image of children in a context of overexposure on the internet, particularly by their own parents. This law, however, only reaffirms or clarifies principles already existing within the Civil Code and further generates unfortunate inconsistencies in substance and form. Furthermore, the legislator remained unaffected by the recommendations of the doctrine, the implementation of which would have contributed to improving the protection of children’s images on the internet.

The vertiginous figures, highlighted by the authors of the proposed law on the image rights of children tabled in January 2024, reflect the scale of the phenomenon. For example, ‘a child appears on average in 1,300 photographs published online before the age of 13′. Therefore, it is necessary for parents to be made aware of the serious implications that are likely to result from the propagation on the internet of photos or videos featuring their children.

Like adults, children have a right to their image which is an integral part of the right to respect for their private life (Art. 9 of the European Convention on Human Rights, Art. 9 of the Convention of the Rights of the Child). Parents and guardians are bound by the duty to consider the rights of the child before posting content about their child online (Art. 12 of the Convention on the Rights of the Child). The dangers of ‘sharenting’, including harassment, sexual exploitation, and blackmail, were highlighted by the Défenseur des droits in its 2022 report on the child’s right to respect for their private life.

Consequently, the drafters of the bill considered that, ‘in an increasingly digitalized society, respect for the private lives of children is crucial today as a condition for their security, their well-being and their development’. However, was legislative intervention the best way to ensure the protection of children and their image? Doesn’t awareness come more through an educational approach aimed at preventing the dangers of children’s exposure to the internet rather than through the legislature?

The child is a person in their own right, a subject of rights and not just an object managed by the parents. The child must be a subject of rights in all aspects of life and especially respect for their private life on the internet. Certainly, it is provided that the minor’s right to image is protected ‘jointly’ by both parents, considering the child’s opinion. In fact, if there is disagreement between parents, the judge may prohibit one of them ‘from publishing or broadcasting content relating to the child without the authorization of the other parent’ explains the text. This will force ‘parents to control the image of their child’. When a child is sufficiently mature, they must be involved in the decisions made by their parents regarding their private life as required by the Convention on the Rights of the Child. In serious cases of violation of the dignity of a child, the text opens the possibility of forced delegation of parental authority. A judge may thus, in serious cases, proceed to a total delegation of the exercise of this parental authority.

If we could predict deficiencies, this adopted law confirmed our anxiety as it increases aberrations and redundant provisions in an area where there was much to be done in view of the relevant recommendations of the doctrine. The law must be accompanied by awareness. More education is needed with the implementation of information campaigns. For example, awareness needs to be raised about phenomena such as grooming, or the predation of minors on the internet.

These are concrete steps forward but without great ambition. In an increasingly digitised advertising world where child influencers are gaining market power by promoting brands and services on their own or their family’s social media, regulation to protect their rights is still far behind.

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