Do parents need each other’s permission to post photos of their child online?
This question comes up time and again in cases where parents have separated and are now trying to figure out how to parent their children when they are no longer one family unit. The issue of privacy and posting to social media was unlikely to be a big issue when the parents were together because they would like have come to a consensus about what content containing information/photographs of their children should be posted to social media and who would have access to this. However, once parents have separated they no longer have the same level of control and this issue can be a difficult one to navigate.
If each parent has parental responsibility for the child, this means they each have a collective set of rights and responsibilities to not only the child, but to each other as separated parents. There are certain issues connected to the child which do require consent from every adult who has PR for the child, such as wanting to change the child’s surname or removing them from the jurisdiction they live in. However, the particular issue of posting photos or other content to social media is not specifically covered by PR.
In the first instance, the separated parents should try to communicate with each other and come up with a set of ground rules they are both happy to adhere to. One of which could be that any photos or videos of their children can only be posted to social media from each parent’s account and no one else’s and the content should only be shared with a specific group of people (e.g a friends list)
If the parents cannot agree on such ground rules, it is possible for one parent to attempt to have any content of their child posted to social media by the other parent removed. The specific rules and regulations of each social media platform would need to be checked carefully to see what is permissible but the parent may also be able to rely on privacy laws
Under Article 8 of the European Convention on Human Rights a person has a right to respect for their private and family life, home and correspondence. Accordingly, it might be possible to argue the taking and posting of photographs without consent could infringe the Article 8 right to privacy of the child.
The principal test for determining whether or not information is private is to ask “whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”. Relevant factors include the nature of the activity in which the claimant was engaged, the place at which it was happening, the absence of consent and whether it was known or could be inferred, and the effect on the claimant.
The question of whether consent has been given to the posting of the photograph is relevant to the issue of whether there was a reasonable expectation of privacy. This issue would need to be considered on the particular facts.
Data protection law may also provide further scope for preventing the publication of images of children. “Personal data” under the UK GDPR means any information relating to an identified or identifiable natural person (data subject). Therefore, a screenshot showing a picture of an identifiable child would be deemed personal data and subject to the UK GDPR and Data Protection Act 2018 (DPA 2018). The UK GDPR and DPA 2018 provide safeguards in relation to the processing of children’s personal data.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Suffolk.