A legal duel involving warnings or perhaps a simple strategy to protect children from the media storm. We don't know what is behind Chiara Ferragni and Fedez's sudden choice to no longer show the faces of their children Vittoria and Leone (aged 2 and 6, respectively). During Leone's recent birthday, the couple surprised everyone by depicting the children only from behind in the photos: an unusual gesture that certainly did not go unnoticed. Indeed, this attracted the attention and speculation of followers and professionals, totally unaccustomed to the anonymity of the two little ones. On the other hand, we must not forget that the assiduous presence of Vittoria and Leone on social networks has always sparked controversy. And, therefore, even the fact of no longer showing them has triggered the antennae of the most attentive, hypothesizing about the legal reasons behind this seemingly harmless choice. However, between the gossip and the fans who eagerly await new developments, lies a delicate terrain, that of the publication of photos of minors on social networks and the consent of parents (or those who act as guardians) . Especially if we place it in a context like the one that upsets Ferragni and Fedez, immersed in a family and legal conflict and in an endless media vortex in which even minor children risk finding themselves (or have already finished). To better understand the problem from a legal point of view, we interviewed Laura Cossar, lawyer specializing in youth and family law.
In recent days, Fedez and Chiara Ferragni published photos of their children from behind for the first time. Are there legal reasons behind such an approach?
“I imagine so, given that the couple never skimped on every daily step for themselves and their two children, who were exposed from a young age to the vast audience of followers. It is likely that one of the two parents (or both, mutually) warned the other not to persist in posting images relating to their children at a time of peak family tension. I think in their situation it is a sensible solution for both children, regardless of the parents' separation and even more.”
From a legal point of view, how does parental consent work for the publication of photos of minor children on social networks in the event of separation or divorce?
“In Italy there is no law that specifically regulates the issue of family breakdowns. It is necessary to refer to the general privacy regulations. The publication of a photograph on any social network is considered, in fact, as processing of personal data, in the legal sense of art. 4 of the General Data Protection Regulation. Personal data means “any information relating to an identified or identifiable natural person, directly or indirectly”. […]”. And, in this sense, the image is certainly one of the identifying elements of a person. Art. Article 8 specifically concerns minors with regard to the computer processing of their data (in particular images) and provides that the processing of data of minors under 16 years of age is reserved for parents or holders of parental authority. Member States, in their domestic law, may indicate a different age, provided that it is not less than 13 years. In Italy the limit is 14 years old. From the age of 14, minors can decide if and when to publish their images online. Before this, the consent of both parents is required, who must act in the exclusive interest of the minor.”
In the event of separation, what are the legal risks for parents who publish photos of their minor children without the consent of the other parent?
“Even then, the rules are general and do not specifically relate to cases of parental separation and divorce. The parent opposed to the publication of the child's photograph can, in the first place, ask the other – by means of a specific warning – to immediately remove the image from the Web, despite all the limitations that this implies. Many social networks in fact become “owners” of the images uploaded to their portals, which does not exclude the possibility that they can continue to “live” on the Internet, thanks to illicit manipulations. It is for this reason that the law requires maximum awareness when deciding to publish an image, one's own or that of others. In the event of no immediate feedback, the dissenting parent has no other choice than to contact the judge who, after the entry into force of the Cartabia reform, may request urgent measures, which may be taken even without hearing the other party. Then, within 15 days, these measures must be confirmed, modified or revoked by the judge. Protection, from a civilian point of view, therefore undoubtedly comes at an opportune time. »
What legal action can be taken if one parent posts photos of their minor children without the consent of the other parent?
“The judge called upon to rule will order the immediate deletion of the contested images from the network and may, at the same time and if required, condemn the parent who made the publication against the will of the other or without their knowledge, to compensation for the damage, also in favor of the son himself. Such behavior, naturally, would also impact the assessment of one's parenting skills: it is never a sign of good parenting to make such invasive decisions in a child's life independently, without discussing them. with the other parent.
What, for example, are the factors that a judge takes into account to positively assess the publication of photos of children on social networks during separation or divorce proceedings?
“There is no general rule on the matter, even if the problem is increasingly widespread. Generally speaking, we can certainly affirm that the judge is always called upon to resolve a dispute involving a minor with the sole objective of what is in international legal language best interests of the child (Principle of the best interests of the minor, editor’s note). Maximum guarantor of the child's interests, the judge can always and in any case make decisions different and opposed to those desired by the two parents in dispute. It will therefore evaluate on a case-by-case basis, both by applying the legislation we spoke about previously and by taking into consideration as much as possible the minor's right to always and in any case be protected. Even more so if the family climate is already poisoned by the argument between the parents, perhaps in a context of maximum media coverage. Beyond the specific aspect of protecting image rights, the magistrate, and before him the parent, must also consider the dangers that the online publication of photographs of a minor may entail. Illicit manipulation of images of children is known to everyone, found on child pornography sites or in any case inserted in completely unsuitable contexts or become the object of digital identity theft.
A bill against sharenting (i.e. the sharing of photos and videos of minor children on social networks) is in preparation, based on data collected by journalist Serena Mazzini. In our current legal landscape, do you think a rule of this type is necessary?
“In Italy we are prolific in terms of laws, often the result of emergency policies, dictated by the contingencies of the moment: this results in a general fragmentation of the rules, which certainly does not help citizens to orient themselves and which, sometimes, also involves difficulties of practical application for legal practitioners themselves. If therefore proceeding with a new law means bringing order and bringing together in a single regulatory collection a whole series of provisions currently scattered in codes and special laws, so be it. Otherwise, the rules, as we have seen, already exist: you just have to apply them. In all cases, it will be necessary to examine the proposed text while being aware that then, depending on the “packaging” that will be assigned to it, it will still have to complete its legislative process. We are therefore still very far from knowing what the final product will consist of; in the meantime, we can only hope for the greatest attention from parents, who have a duty to inform themselves and manage sensitive data relating to their child and the children of third parties with appropriate caution. Culture, as always, is the first ingredient of awareness. »
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