Photographs and the image rights of the minor: Is the consent of both parents necessary?

Intellectual property

In adaptation to the digitalised world in which we live, companies, entities and individuals are disclosing themselves throughout the digital world and social networks. For this reason, the authorisations for the transfer of personal data and the image itself are not unknown, but in the case of a minor, who should authorise the transfer of the image rights and processing of his or her data?

The answer is: Those who share the parental authority of such a minor, when it’s more than one person (father and mother, both fathers or both mothers) or individually, when it’s only one person (mother, father, or legal guardian).

As already endorsed by the Supreme Court (SSTS of 19 November 2008; 17 December 2013; 27 January 2014; SSTS of 16 June 2015, among others), the reproduction and dissemination of the image of minors without the consent of the parents or legal representatives is contrary to the legal system and the fundamental rights of the child. In addition, the recent Organic Law 3/2018 on the Protection of Personal Data and the Guarantee of Digital Rights, which develops the European Regulation 2016/679 on Data Protection, in its article 7, grants the right to give consent to the processing of personal data, in this case, the image of those under 14 years of age, to the holders of parental authority of the minor or, where appropriate, legal guardians.

It is therefore established that the imatge rights of the minor fall within the scope of parental authority.

In this regard, article 156 of the Civil Code provides that parental authority is exercised jointly by both parents or by one parent, with the express or tacit consent of the other, and is endorsed by the decision of the Provincial Court of Barcelona No.385/2018 of 15 May, recognising that the imatge rights of the minor fall within the scope of parental authority and that is held, generally, by the two parents and/or the couple.

In particular, the above mentioned ruling of the Provincial High Court of Barcelona states that, while it is true that consent may be tacit taking into consideration the “social uses” and customs of the couple who hold the parental authority, the mere social reality is leading to a tendency towards an increasing publication of images of minors by parents, friends and family members in an indiscriminate, automatic and unwise manner, which which leads to an excessive exposure of the minor’s privacy, without taking into consideration that the child might be offended or uncomfortable with this, as well as the danger it entails in terms of use and manipulation by third parties. Therefore it concludes that the issue of the image and intimacy of a minor is so delicate and of such importance that both parents must decide and consent together, except in cases of deprivation or suspension of parental authority.

For this reason, at MES Advocats, we always advise our clients to claim the signature and conformity of the parenting partner (mother and father, mothers or fathers), when aplicable, in case of doubt.

Links to applicable case law: