POSTING CHILDREN ’ S ’ PHOTOGRAPHS ON SOCIAL NETWORKS : Sociological and legal aspects

Posting childrens’ photographs on social networks can be an unsafe activity. Parents are free to choose whether to post photos of their children on-line or not. However, if it is done by a third person or an entity, the question of parental consent comes up to the surface. However, for those situations compulsory consent of both parents is not required by the national legislation in Serbia. Based on content analysis of relevant international documents and legislation, the author argues that in order to prevent potential abuses the already existing solutions need to be improved.


Introduction
The rapid advancement of information technologies creates numerous positive possibilities, but also increases the possibility of violation of the right to privacy.Due to this technological progress, people can connect and communicate over long distances, in a relatively short period of time.Maintaining friendships and establishing business contacts is easier.That is why a large number of people use social networking services (Facebook, LinkedIn, Twitter, Instagram, etc.).A vast majority of users use Facebook, which had originated as a Harvard student's idea encapsulating online community of friends where photographs and profiles would be uploaded by users, that is, as an idea to create an interactive virtual community parallel to the social communities existing in the real world (Mezrih, 2010, p. 72).In this "interactive community", a large number of data, including photographs, have become available to the public.Consequently, a possibility to abuse these data has increased. 3Hence, a question often asked is how much the users of social networks are protected against misuses?In this regard, particularly serious problem is use of the networks by underage children (persons under eighteen years of age), or when on-line personal data such as photographs are posted by their parents.
Many companies like Facebook have their own policies, which the user is required to read and agree to before joining a social network.In this way, responsibility for posted content is transferred to the users, while registration with a social network represents a legal agreement.Thus, the majority of problems occurring on Facebook are related to the right to privacy, data protection, and the possibility of exercising the right to legal protection.These issues have been regulated by the European Union regulations, the most important being the Data Protection Directive (Directive 95/46/EC). 4It is considered to be the foundation for further development of European Union's legal framework regarding the right to privacy, protection of users' data, including users of Facebook and other social networking services, in electronic communication.Other directives have been passed only to enable further application of the Directive 95/46/EC in the area of electronic communications (Diligenski & Prlja, 2014, pp.7-6).Nevertheless, numerous cases of non-compliance with these regulations by Facebook have been reported in practice.Therefore, it appears that one needs to be very careful when it comes to the use of social networking services.
Regarding protection provided to children at both international and national level, there is a constant need to reassess effectiveness of the existing protection measures.Development of information technologies, especially a growing number of social networking services, has created new perils because even if an underage child does not own a profile on social networks, posting of a child's photograph on social networks can be done by someone else.Numerous tools, available even to a layman, allow for detection of the origin of photographs on the Internet.These tools make detection of a person's photo published on Facebook possible, but in addition also detection of the name of the place where it was taken.These tools allow for detection of photographs' origin on fake profiles and help prevent various abuses.However, at the same time they also may serve as tools various abuses. 54 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal L. 281, 23/11/1995, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection), Official Journal of the European Union 119/2016.The document provides a better protection of personal data.According to Article 8, if a particular information on social services refers directly to a child, processing of personal data of the child is allowed only with a prior consent of the child's carer.EU member countries should make sure there are legal provisions in place making consent mandatory for individuals under the age of sixteen.Besides, member countries can even prescribe lower age, but not lower than thirteen, for mandatory consent as the legal limit.Article 40 of the Regulation foresees a need for a Code of conduct dependent on specific business practices of the legal entity processing personal data.Regulation from 2016 replaces the Directive from 1995.However, the regulation will be in force only from May 2018. 5The following webpage post, http://www.istokpavlovic.com/blog/kako-da-otkrijete-poreklo-bilokoje-fotografije-na-internetu/,retrieved March 10, 2017, explains ways to detect name of a person whose photograph was posted on the Internet, as well as the place where the photograph was taken.However, one should have in mind that in this specific case, the instructions are aimed at users without high level of IT knowledge, and it is assumed that those with such knowledge would use some other tools in order to exploit personal data.
Public opinion with regard to publication of photographs of children on social networks is generally divided.In April 2017 an online survey has been conducted in the UK on a sample of one thousand adults.Based on results, 56% of respondents is against publication of photos of children, 70% think publishing photos of other people should not be done without permission, 36% strongly believe access to personal photos should be restricted to friends or followers, and 50% agree it is impossible to permanently erase images posted on the Internet (Kellon, 2017).
According to the international and national regulations, the rights and interests of underage children should be protected by their parents.When it comes to posting photographs of underage children on social networks, it seems that there are some legal gaps at the national level that need to be closed with an adequate provision in order to ensure the full protection of underage children when it comes to use of photographs on virtual social networks.

Protection of the Children's Right to Privacy at the International Level
According to the United Nations Convention on the Rights of the Child, a child is every human under the age of eighteen, unless otherwise stipulated by the applicable law, in which case adulthood would be attained earlier. 6By signing the Convention, countries have committed, through the national regulations, to make sure that no child is subjected to arbitrary or unlawful interference with his/her privacy, family, home or correspondence, nor to unlawful attacks on his/her honour and reputation. 7As long as the children are underage, their parents protect their rights and interests and are their legal representatives.According to the Convention, their common responsibility is the upbringing and development of the child and their primary concern is focused on the best interest of the child.In this regard, parents should take all the necessary measures to preserve these interests.According to the provisions of the Convention on the Rights of the Child, contracting parties are obliged to ensure that both parents have common responsibilities for the upbringing and development of the child. 8Even the universal instruments on human rights private life.According to this definition, the right to private life implies that everyone has the right to choose a kind of life he/she prefers, protected from the public, which to an extent includes also the right to establish and maintain relationships with other human beings. 10The right to private life is constrained by the extent to which an individual exposes his/her private life, either through public contacts or in close connection with other protected interests. 11Nevertheless, children under certain age can hardly be expected to be aware of privacy concerns.Therefore, their parents are expected to care about their privacy in order to secure the best interests of the child.The same applies to posting child's photographs on the Internet via social networks.
The right to privacy is particularly vulnerable in the digital age.Based on Article 12 of the Universal Declaration of Human Rights, some later UN documents have highlighted the importance of protection of this right.Thus, the United Nations Resolution 68/167 emphasizes that the rapid pace of technological development and the potential to use information technologies, and at the same time the possibility of personal data being used by companies and a large number of individuals, can contribute to violations of human rights, especially of the right to privacy. 12Therefore, the United Nations member states are urged to provide adequate protection of the right to privacy through their national legislation, not only through repressive measures (negative sanctions), but also through adequate preventive measures.The same is contained in the United Nations' Resolution No. 28/16 of 2015. 13It has been emphasized that an important goal of all countries is identification and clarification of the best principles, standards and practices for promotion and protection of the right to privacy, including establishment of special procedures.Therefore, equal protection of the right to privacy should be extended to violations on the Internet.However, the above-mentioned resolutions are joint conclusions, and as such only recommendations to the member states to provide the adequate protection at the national level for the benefit of humanity and the protection of human rights.Consequently, it is necessary to improve the national legislation in order to protect the right to privacy and, above all, the right to privacy of the child.Having in mind that underage children are passing through fundamental psychological and physical phases of development, hence being extremely sensitive, the focus should be on preventive measures.
Protection of the Right to Privacy of the Child at the National Level forms; however that format has not been officially regulated at the national level.
Nevertheless, the form contains information about name and surname of the parent or guardian, his/her explicit consent for posting a photograph, as well as parent's ID number, address, and the date of consent.Written consent is given exclusively prior to posting the photograph.Anyhow, the fact that it is sufficient that only one parent consents before posting the photograph of the child, can pose a significant problem.It should be kept in mind that parents jointly exercise all parental rights as long as their marriage lasts.In addition, even after the divorce, consent of both parents is required with regard to certain rights which may affect the child's life.Thus, before posting photographs of the child on social networks by the school or any other natural or legal person, the consent of both parents should be sought, if possible.This would be in accordance with Article 18 of the Convention on the Rights of the Child, which stipulates that contracting parties are obliged to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child, and that their primary concern is the best interests of the child.
Obligation to obtain parental consent for posting photographs of their underage children on online social networking services is not explicitly provided for by any national regulation.In Serbia, the Law on Public Information and Media stipulates that information regarding private life or personal records (letter, diary, note, digital record, etc.), recording of images (photographs, drawings, film, video, digital, etc.) and audio recordings (taperecordings, gramophone records, digital, etc.), cannot be published without the consent of the person whose private life the information refers to, or of the person whose words, image or voice it contains, can lead to the recognition of that person's identity. 14Information and recording cannot be published without the consent of the person they refer to, if such publication can lead to violation of his/her right to privacy or some other right.Consent given to one publication, for a specific way of publishing, or to publication for a specific purpose, is not considered consent to repeated publication, to publication in a different manner or to publication for a different purpose.Nevertheless, the Law makes no mention of the explicit requirement to obtain parental consent prior to publishing photographs of the child on social networks.Article 81 of the Law provides for cases when some other person gives consent on behalf of a specific person for publishing his/her photograph in the media.This is in cases when a person whose photograph is published, is deceased.In this case, the consent is given by his/her spouse, his/her child having reached sixteen years of age, by his/her parent, brother, sister, by the legal person that the deceased was part of (an official body, member, employee) in the event the information or record refers to his/ her activities in that legal person, or by the person authorised by the deceased.
Taking into account all the above said, it seems that the legislator's intention was, above all, to protect the media outlets against unauthorized publication of personal data, as well as to protect the right to privacy of adults, while the right to privacy of the child remained unprotected.However, the right to privacy of the child can be observed as a part of the right to privacy of the child's parents.Pursuant to Article 12 of the Universal Declaration of Human Rights, no one can be subjected to arbitrary interference with his/ her privacy, family, home or correspondence, nor to attacks upon his/her honour and reputation.Thus, everyone has the right to legal protection in case his/her right to privacy has been violated.The obligation to respect the mentioned right is also provided for by Article 8 of the European convention of Human Rights as the obligation to respect his/ her private and family life, home and correspondence.A resolution of the Parliamentary Assembly of the European Council has determined that the right to privacy consists of the right to live one's own life with a minimum of interference, as well as of protection of family and home life, physiological and moral integrity, honour and reputation.It is not possible to list here all the rights that fall within the scope of the right to privacy, due to the mentioned right's natural connection to other individual and political rights, and because the scientific and technological development influence the need to protect new rights (Paunović et al, 2007, p. 216).
Based on the analysis of the existing national legislation, one can conclude that not even one provision provides for the mandatory written parental consent when the photographs of underage children are posted on social networks by natural persons, or by the other parent.If marital and family relations are undermined or the parents are divorced, the lack of such consent can be the cause for abuse of parental rights.Nevertheless, until the adoption of adequate regulations that will explicitly establish the obligation of obtaining such consent, one should take into account the provisions of other regulations, such as the Family Act of the Republic of Serbia. 15

Possible Solutions at the National Level
The provisions of the Convention on the Rights of the Child have been implemented in legislations of the signatory states through national regulations.According to the Family Act of the Republic of Serbia, parents have the duty to exercise parental rights to the extent necessary for the protection of the personality, rights and interests of the child.If the parents are married, the mother and the father have joint parental rights.In case of divorce, the parent that does not exercise parental rights still has the right and duty to support the child, to maintain personal relations with the child, and to decide on issues that significantly influence child's life, jointly and consensually with the parent exercising the parental rights.The Law defines the issues that significantly influence the child's life.Accordingly, these include the following issues: the education of the child, larger medical interventions the child is subjected to, the change of the child's residence, and the disposal of the child's property of great value.In addition to the above-mentioned some other issues can also significantly affect the child's life.Bearing in mind the considerable vagueness regarding the disposal of photographs published on the Internet via social networking services (Facebook), one might ask to what extent this can affect the child's life in some future period.The earlier international documents were tailored for the Internet use of corresponding historical period.However, nowadays, when there is a large number of social networking services, problems occur in relation to their use by underage children, as well as to posting their photographs by legal or natural persons, including parents themselves.Children under a certain age still lack the ability to understand the meaning and significance of their actions, and therefore it is quite reasonable to expect parents to play a very important role in guiding their children's psychological development.
When using social networks, underage children may be exposed to various forms of threats.Due to their insufficient psychological maturity, they are unable to correctly assess the severity of certain situations.Thus, in accordance with the Family Law, the rights of underage children are represented by their parents or legal guardians.Nevertheless, particularly dangerous is the situation when parents post photographs of their children on their profiles on social networking services.Since it is quite unclear how the photographs published on social networks are further handled, it can be concluded that there is a possibility that one of the parents may not consent to publishing of photographs of the underage child by the other parent.This issue could be solved by stipulating the provision of mandatory written consent by the other parent.Such practices should be encouraged especially in situations when after the divorce one parent independently exercises parental rights.

Possible Abuses and Obligations of Facebook
Photographs published on social networks can be misused, even after they have been deleted.A number of cases prove this.Some Facebook user with knowledge of URL address of a photograph can access it even after it has been deleted.It is possible to do this even several months after its deletion, by entering the URL address.In this way, some users gained access to the photographs that have been officially deleted three years earlier (Diligenski & Prlja, 2014, p. 24).Deactivation of the profile is not permanent, but only temporary cancellation.Therefore, if a user deactivates his/her account, Facebook will keep the data in the storage in case the person returns back.This is contrary to the modern regulations on data protection.Data processing and usage represent the biggest dilemma.It is still unclear how Facebook deals with user data.All data on Facebook posted by users become Facebook's property (Ibid., pp.119-120).Politics and law, by all accounts, are far behind the technology, and the basic founding principles of modern states are no longer able to follow the development of the Internet and information flow (Ibid., p. 120).
Although there are, at the EU level, documents regarding protection of personal data, current practice leads to a conclusion that social networking services do not comply with these regulations, but rather rely on their own rules and policies, and in some instances do not adhere even to them.For this reason, it seems that the only possible solution is the adjustment of national regulations to practical needs, i.e. stipulation of preventive mechanisms that will provide each individual with the opportunity to more adequately protect both individual's privacy and the privacy of person's underage child, whose rights and interests the person is obliged to protect in accordance with the Family Act.
As previously stated, the social networking services, primarily Facebook, establish their own rules of business, and consequently terms of service.When it comes to the photographs published on Facebook, this company is obliged to submit a copy of data categories upon user's demand.These data should also include data on face recognition, as well as other information that Facebook stores its database.The company can use user data to a limited extent for advertising, can use like button to a limited extent, must not track users based on likes, must not use user's pictures for advertising unless the user gives explicit consents, must provide the user with the option of deleting his/her pictures, the user must not be added into a certain group without his/her consent, inactive/deactivated profiles must be deleted if not used for a longer period of time, the last digit of an IP address must be deleted, entries related to search must be deleted after six months.Moreover, Facebook has to check the terms of data protection of the application owner, as well as to obtain yet another consent of the user, when the recognition option is illegally activated. 16

Use of Social Networks by Underage Children
When it comes to the use of social networks by underage children, Facebook, as a social networking service with the largest number of users, does not keep track on how old is the person creating a user account.17According to Facebook policies, a person must be at least thirteen years old at the time when the account is created.If a person is under thirteen years of age, status of a user of a social networking service is decided exclusively by his/her parents.They can report such circumstance by filling out the electronic form.Likewise, if a parent doesn't agree with it, he/she can delete his/her underage child's account even if the child is older than thirteen. 18In conclusion, the decision on whether the child will use Facebook or not depends exclusively on the decision of the child's parents.Although, even in this case both parents' opinions should be taken into account, and thus such decision should depend upon the will of both parents if possible.If one parent is deceased, is unknown, or for other reasons is unable to exercise parental rights, consent of only one parent should be sufficient.This would be in compliance with Article 18 of the Convention on the Rights of the Child according to which parents are obliged to jointly exercise parental rights and take measures in order to protect the best interests of the child.However, if the parents allow their underage child to use social networking service, the question arises whether it would be necessary, even in such situations, to take into account the attitude of both parents.If one takes into account the provisions of the Law on Public Information and Media, parental consent would be necessary in each specific case.This should be interpreted in the sense that if the parents permitted their underage child to open an account in accordance with terms of use of social networking service, they must give a separate written consent for publishing the child's photograph by other legal and natural persons.However, in this regard, the adequate protection of the best interests of the child would be questionable.
Caring about children and their upbringing inevitably requires from parents to, acting in child's best interest, impose various restrictions on their children.Assessment of the child's best interest is performed for each individual case.According to some opinions, it is better not to treat the child as an adult, while on the other hand some claim that such opinions are quite conservative and discriminatory towards children.In developed countries it is believed that when determining the best interests of the child, parents should be guided by the principles of individualism -principles of the protection of physical and psychological integrity of the individual, i.e. the child.In traditional communities, priority is given to the values of the whole community, and the best interests of the child is considered to be acceptance of these values (Vučković, Šahović, 2000, pp.98-103 cited according to V. Dimitrijević et al, 2007, p. 223).
Pursuant to the Family Act of the Republic of Serbia, majority is reached at the age of eighteen.It is also the moment when full legal capacity is reached.However, this legal status can also be obtained before reaching the age of eighteen.According to the provision of this Law, this happens in cases when an underage child concludes a marriage with the court permission before reaching the age of majority. 19Likewise, the court may also permit a minor to obtain full legal capacity if he/she has reached sixteen years of age, has become a parent and has reached the physical and psychological maturity to provide independently for his/her own personality, rights and interests. 20In these cases, parental consent for publishing photographs of underage children on social networks won't be required, because the person in case is considered capable of protecting his/her own personality, rights and interests by the court decision passed in extra-judicial proceedings.

Conclusion
The national regulations do not recognize the need to protect the right to privacy of the child in case of children's photographs being published on social networks by natural persons, including the other parent, if the parents are not married or are divorced.In the latter case, one may ask why the consent is required, since the parents, in accordance with the law, take measures to protect the rights and interests of the children.Still, such consent is necessary for several reasons.It is possible that one parent does not give consent to posting his/her underage child's photographs on social networking services.In addition, it is also possible that publishing of the child's photographs on social networking services could be used to undermine parental rights of one of the parents, by allegations of abuse.