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Is it illegal to post photos of my kid online?

A lot of articles about whether parents should post images of their kids online have been circulating online lately. Many are focused on the morality of posting photos of an underage person, who does not get to choose if their image is published online.

This is despite the fact that the person posting the image is the child’s parent.

Taking things even further, we’ve seen a spate of court proceedings, where young adults have attempted to prosecute their parents for posting images of them online, while they were underage.

We’re taking a moment to dissect this growing trend.

The issue

Before the advent of social media, photos lived between the private covers of family albums. Today, images of children are plastered on social media for immediate friends, and the world, to see.

We say the world, because when a Friend ‘Likes’ an image on Facebook, all of that person’s immediate Friends and other Friends can see it too. This is the case for most social media networks, but we’ll stay focused on Facebook because it is the most used social media network in the world.

The takeaway here is that when you post an image, it is seen by your Friends, and other people you don’t know.

But what about the little person being photographed?

They are below the age of consent, and may not even want their photograph seen by your immediate Facebook Friends, let alone complete strangers.

And let’s not forget the fact that most of us don’t really know all the people we are Friends with on social media that well at all.

An 18-year-old Austrian woman was so fed up by her parents posting photos of her online, that she filed a lawsuit against them when they refused to remove them.

The facts

  • An 18-year-old Austrian woman found out her parents had shared 500 images of her on Facebook.
  • The woman’s parents had 700 Facebook Friends, who were able to see her in different situations as a baby and young child.
  • This included situations involving nudity.
  • The photos were posted without the woman’s consent.
  • Teen Vogue was reported as saying that the parents did not receive a request from their daughter to remove the images. However, the woman maintains she did request their removal.
  • She took her parents to court to have the pictures removed, and secure financial compensation. (Source: USA Today.)
  • The woman’s father claimed that if he took a photo of his baby, he should have the freedom to choose how it is distributed, and where. (Source: Cosmopolitan.)
  • The woman argued that since the images were shared publicly, it is a violation of her privacy. (Source: USA Today.)
  • The case will be decided in November.

The woman was quoted as saying to an Austrian news outlet:

“They 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.‌ “

Source: The Local 

So is it illegal to post photos of your children online?

This depends on the privacy laws enacted in your area.

France has some of the strictest privacy laws in the world, with penalties of 45,000 Euros and 1 year in prison for those who publish or distribute images of a person, without obtaining their consent first.

Austrian privacy laws are comparatively less strict. The woman in the aforementioned case must prove the photos violated her right to a personal life. If this can be achieved, her parents could lose the trial.

In Australia the Privacy Act 1988 (Cth) governs the unauthorised production and publication of a person’s image.*

The Act regulates the publication of personal information that conveys the identity of a person or allows their identity to be determined.* 

Under Section 6 of the Act, personal information is:

Information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.*

* Source: Australian Government Australian Institute of Family Studies – Images of children and young people online CFCA Resource Sheet, April 2015 

 What does this mean?

  • If an image allows a child to be identified then it must not be published.
  • This includes any image that allows a third party to determine where a person lives, or what school they attend – for example a photo that includes a child in school uniform.
  • Except when either the parent or guardian and the child consent to the image being published.
  • Given the child must consent to having their image posted online, it is arguable that parents must ask their child for consent before publishing images of them in Australia.
  • Since we don’t have any case law relating to this issue in Australia just yet, we can’t provide a real life example.
  • This is certainly an area of Law that may be explored more thoroughly in the future, as more and more young children from the digital age become adults.
  • Head here for detailed information on obtaining consent, and other issues relating to the Act.

What can I do?

We highly recommend reading this blog about the ethics of posting images of children online. Although we strongly believe every parent should be able to choose how they raise their child in this challenging digital age, we also think it is worth considering the growing legal and moral issues relating to posting images of children online.

Visit our Facebook page to be part of our growing community of parents who want to learn more about raising kids to be healthy and resilient, while still embracing social media and the online world.

If you have an insight or experience to share, please feel free to leave a comment below.

Legal Advice Disclaimer: This information is general in nature. For legal advice around this issue please seek the services of a lawyer or legal professional in your jurisdiction.