Posting Photos of Someone Else's Child on Social Media Can Lead to a Lawsuit: When a Post Ends with Compensation for Damages

Social networks have turned photo posting into a common part of everyday life. At the same time, not everyone considers that posting a photo of someone else's child may violate their right to privacy and the right to their own image.

This issue is especially relevant for schools, kindergartens, clubs, photographers, and parents who post photos from children's events.

What the legislation says

The right to privacy protection is enshrined at the constitutional level. According to Article 32 of the Constitution of Ukraine, no one may be subjected to interference in their personal and family life except in cases provided by law.

The protection of a person's image is regulated in detail by the Civil Code of Ukraine. For example, Article 307 of the Civil Code of Ukraine establishes that a natural person can be photographed, filmed, or recorded only with their consent. Consent may be implied if the shooting is conducted openly on the street, during meetings, conferences, rallies, and other public events.

At the same time, consent to be photographed does not automatically mean consent to further dissemination of the image. According to Article 308 of the Civil Code of Ukraine, a photograph depicting a natural person may be publicly shown, reproduced, or distributed only with their consent. Thus, the law distinguishes between photographing and subsequent publication of the photograph.

Separate importance is given to the provisions of Article 301 of the Civil Code of Ukraine, which guarantees every person the right to personal life and to independently determine the circle of persons who may receive information about them, as well as Article 302 of the Civil Code of Ukraine, which provides the right of a person to information about themselves.

Since young children cannot independently exercise these rights, decisions regarding the use of their image are made by parents or other legal representatives. This approach is consistent with Article 242 of the Civil Code of Ukraine and Article 154 of the Family Code of Ukraine, according to which parents are the legal representatives of the child and protect their rights and interests.

Moreover, Article 3 of the UN Convention on the Rights of the Child stipulates that in all actions concerning children, the best interests of the child must be a primary consideration.

However, in case No. 214/11028/21, the Supreme Court noted that the legislation does not specify how exactly the consent of a natural person to the use of a photograph with their image should be formalized. Thus, when assessing the existence of such consent, it should be taken into account that consent may be given in writing, orally, or in the form of tacit consent.

Tacit consent may be manifested in the fact that the person knew and saw that they were being photographed or filmed but did not express objections to the shooting, as well as in the case of independently posting photos or videos for an unlimited circle of users without indicating the existence of copyright or related rights to them.

The court decided that posting a photo by a person in an open social media profile without restricting the circle of users is their public dissemination. Under such circumstances, the use of such a photo by other persons may be lawful since the person made it publicly accessible themselves. At the same time, if access to the photo was restricted to a certain circle of users, its use without the person's consent is unlawful.

Position of the Educational Ombudsman

As previously reported by the "Judicial and Legal Newspaper", the Educational Ombudsman emphasized that educational institutions do not have the right to publish photos of children without the consent of parents and the students themselves. In his opinion, posting such images without proper consent may constitute an interference with the child's private life.

The Ombudsman also pointed out that teaching staff are not authorized to give such consent on behalf of parents, and the use of children's photographs must have a clear lawful purpose and proper legal basis.

Possible consequences of posting photos of someone else's child

Posting a photo of someone else's child without the proper consent of the parents may be considered a violation of the child's personal non-property rights, including the right to privacy and the right to their own image.

In such cases, the following legal consequences may occur:

• a demand to remove the photo from public access;
• a court injunction to stop further dissemination or use of the image;
• compensation for moral damages to the child or their legal representatives;
• in certain cases — liability for violating personal data protection laws if the photo or accompanying information allows identification of the child.

Approach of the European Court of Human Rights (ECHR)

In the case Reklos and Davourlis v. Greece, the ECHR recognized a violation of the right to privacy of a newborn child who was photographed in a maternity hospital without parental consent.

The court noted that the right of a person to control their own image covers not only its publication but also the photographing and storing of photos without proper consent. This decision became one of the key precedents regarding the protection of the right to one's image under Article 8 of the Convention.

Thus, it can be summarized that posting photos of someone else's child on Instagram is not just a matter of ethics. Without proper parental consent, such publication may be grounds for a demand to remove the photos, stop their dissemination, and compensate for moral damages.

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