The presence of social media has become part of our lives nowadays, we share the main events, happenings or simply our thoughts with family, friends or even the whole world every day. The world of posts, photos, videos, blogs and vlogs is necessarily linked to the right to image and voice recording. Image and voice recording rights are classics of personality rights, but the need to protect them has gained importance recently due to digitalization and its effects on society. Violations of these rights are becoming more and more prevalent nowadays as social media becomes part of our lives. The specific unity and integrity of image and voice are protected by Hungarian civil law. The violence of these rights mainly consists in the absence of consent, as the person uploading the image or voice recording does not get the necessary consent from the involved person.
During the development of Hungarian civil law, the need for more extensive protection of the right to image and voice records within the right to personality arose at the beginning of the 20th century - parallel to the invention of photographs, which meant an easier way to capture an image accessible to everyone, and then, as it became consistent and daily routine of life - it necessarily required legal regulation.[1]
The right to image first appeared in the Draft of Private Law Act in 1928[2], then it found a place among the named personality rights both in Act IV of 1959 on the Civil Code of Hungary (hereinafter: CC-1959) and in Act V of 2013 on the Civil Code of Hungary (hereinafter: CC) currently in force.[3] A common feature of the development of the law is that the word "violence" appears in both text of the mentioned Acts, but its meaning can be misunderstandable at first time. The term "violence" includes different behaviours,
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one side a culpable and direct behavior, which the Hungarian civil law called as intentional fault.[4] However, not only this way can be possible to violate the image and voice recording rights of another person, but any unauthorised interference related to this right, even completely innocent, may also be unlawful, the facts are entirely objective and independent from the actual mental state of the offender party.
The advantage of social media is above all that we can connect easily an extremely large number of people with little effort. Traditional forms of communication, such as face-to-face meetings, face-to-face conversations or even instant messaging using other forms of digital tools, are all activities that require extra energy from the people compared to the use of social media. That's why one of the biggest benefits of social media is the ability to quickly share and communicate large amounts of information to other people. As a result, sharing our daily lives with family, friends, or the whole world has become possible in recent years. This possibility is especially evident among parents, who in addition to sharing the events of their own lives with others, in many cases they also publish their child's everyday life.[5] There are many reasons for share, on the one hand, to preserve the memory of these moments by parents and share it with others. Beyond that, however, there are many other factors that motivate parents to share these moments with others. On, the other side, sharing can also have many problematic points. First, data concerns, because the children are placed on the Internet, which in many cases serves as a tool of abusive behaviour and in others as a tool of carrying out criminal activities. Therefore, as much as the publication of these recordings can be beneficial for the parties, it also carries the risk. In addition to the fact that a recording may have adverse consequences for the child himself, for example depicting the child in situations that will expose him or her to ridicule or harassment, the child himself may even become a victim of crime.[6] Special mention should be made of the increased appearance of the phenomenon, i.e. typically those cases when the parents themselves are well-known personalities as influencers and consequently the sharing of their private lives is often connected to their economic activities, advertising activities and sponsorships, in which they can also involve their children. I think these behaviors have significant importance because in this case, not only emotional considerations or well-intentioned sharing, such as keeping the absent family member up-to-date about the fate of the child, but also economic potentials and the possibility of gaining advantage encourage the active and increased involvement of children in these activities.
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Sharentig is a fusion of the words "share" and "parenting" and the scientists use it to describe the social phenomenon of parents sharing their children's data on social media. Therefore, these are behaviors when the parent consciously publishes pictures or videos about the child, in which the child himself can be seen in different situations.[7] Another definition of sharenting refers to the behaviour of parents using social media to discuss their children's daily lives by posting text posts or video recordings, thereby passing on data about their children.[8] However, the interpretation of the definition in the literature is more complex. In order to speak of sharenting, two criteria must exist simultaneously: first, it includes the requirement that sharing itself has to be in public form, not in private form, and, secondly, the criterion of identifying the child, i.e. that it be possible to recognise who is on the published video or picture.[9]
The lawful publication of images and voice recordings requires the consent of the concerned person, i.e. a statement as to whether or not he consents to the making of the record and to share it.[10] The rules for making declarations can be found in the regulation of the CC, according to which due to the age of the child. A minor over the age of 14 has limited legal capacity[11], but a child under the age of 14 is incapacitated.[12] As a general rule, minors can not make a legal declaration independently, in the first case of minors need the consent of the legal representative for making a valid declaration, in the second case only the legal representer can make - without the minor - legal declarations.[13] Legal representation can be the person, who exercise the parental responsibility over the child or the guardian of the child in this situation.
Parental responsibility includes every right and obligation of parents towards the child[14], the most important content elements of it are also specified in the CC itself.[15] It follows from the principles of the CC on parental responsibility that parents have to cooperate in the interests of the child when they exercise parental responsibility. However, cooperation does not mean always, that the parents need to agree or decide jointly.[16] If the parents live separately and only one of them can exercise the rights and obligations arising from parental
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responsibility, meanwhile the other parent's right are suspended[17], then in this case, the suspended parent can only decide about the major issues of the child's life.[18]
To compensate for this, the CC requires that the parent, who exercises the parental responsibility, he or she has to inform the other parent.[19]
Parental responsibility includes the right and duty to represent their child in personal and property cases or legal situations. However, this right of representation does not extend to the personal statements of the child. The list of the personal statements contains the CC itself.[20]
Based on this, in the case of sharenting, the parent, who exercises parental responsibility, has the right to decide about the consents to the publication of the image and voice recording about the child. Therefore, situations where a parent shares a picture or video about their child can be legitimate, if the sharer is the exerciser of parental responsibility. If parents have a joint form of parental responsibility, both together can exercise this right, but in cases where the parents are divorced or simply live separately and one parent has parental responsibility, the other parent making and sharing activities could be only lawful if the parent, who exercises parental responsibility has given his/her consent. This is also the case when these activities are made by other family members, such as grandparents, siblings, etc.
However, the consent has no formal requirements in the CC, it can be given orally, in writing or even by implicit conduct. The practice has also consistently emphasised that consent to the creation of an image can also be expressed by implicit conduct. This shall be considered especially, if the party concerned notices the recording process, and against this noticing goes to the location of the recording and does not protest to the recording being made.[21]
The other problem is caused by the fact that both in the rules of parental responsibility and in the rules on legal capacity the CC stipulates that the parents must listen to and take into account the opinion of a child, who is capable of judgment, and they must also inform the child regardless of judgment capacity.[22] A conflict of interest may arise between the parent and the child, which the CC stipulates that the parent may not represent his/her child in matters in which the parent him/herself, his/her spouse, domestic partner, relative in direct line or any other person under the parent's legal representation is the opposing party.[23] It follows, in my view, that an additional condition for the child will be the examination of whether or not the parent has involved the child in the decision. Accordingly, combining the provisions of the CC on the rights of persons with the provisions contained in the Family Law Book in CC, two conditions are required for any image or voice recording of the child to be lawfully made or published:
1. The parent, who exercises parental responsibility, accepts to make or publish the recording,
2. The parent asks the child's opinion before the recording was made or published, and the opinion of the child was taken into account by the parent.
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Fulfilling these conditions will raise further difficulties, when the subject of the legal dispute are the personality right, because it will not be easy to prove whether the child was actually involved in the decision.
In addition, the published content may raise concerns for the child himself. It may happen that the child also consents to the making and publication of the recording, but the recording itself is capable of causing harm to the child's interests. In my view, it will be divided opinion about the child of a public figure or a famous person, who is word-wide known, is involved in various advertising and sponsorship activities on social media platforms. So, with regard to the shared content, the examination of the parent's behaviour will require an extra examination of whether the parent's behaviour harms the child's interests and whether it will have an adverse effect on the child's physical, moral or mental development. Therefore, if the parent's behaviour causes the violation or harm of the rights of the child, then according to the CC, his/her parental responsibility rights may be restricted to the extent necessary, in more serious cases it could be necessary to terminate it.[24]
Another important element of this problem is the use of shared content. In family law cases, particularly divorce and actions for the settlement of parental responsibility, it is increasingly common for parents to use shared recordings, including those that are not lawfully published, as evidence of their assertion. The answer of jurisprudence to this question is that the use of video and voice recordings made and published without consent in civil proceedings does not violent personality rights if it serves only to refute the false statement made by the opposing party in the trial and to prove it in order to protect the appreciate private interest of the user party.[25]
Parental responsibility is one of the strongest rights in the relationship between parent and child, but there are cases when there is no person in the child's life who can exercise these rights. This may be due to the fact that both parents or the exerciser parent are no longer alive, or that the parental responsibility of the parent has been suspended or terminated by the court.
In such cases, the parents' rights under parental responsibility will be exercised by the child's guardian, subject of course to the differences provided by law due to the nature of the legal institution.[26] Guardianship is nothing more than a legal institution replacing parental responsibility, the purpose of which is to protect the personal and property interests of the child.[27] In this case, the consent may be provided by the child's guardian.
The changes in our accelerated world are also being followed by the legal regulatory background. There is no doubt, however, that there are more and more social phenomena and changes, the legal assessment of which poses increasing challenges to both legislation
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and jurisprudence. One example of this could be the phenomenon of sharenting, which is the central element of the study, as digital platforms and social media have become part of our lives. The regulation and jurisprudence of the right to image and voice recording, as an independent right to personality, already indicate these changes, but in many cases the problem of assessing the legal assessment of different situations is that the existence of violations is examined exclusively from the point of view of regulating personality rights. In this study, however, I wanted to draw attention to the fact that there are persons, such as children, who, due to their vulnerable situation, should be judged differently from the rest of society. This is ensured by the fact that there is an extensive system of private and public law on the protection of children in Hungary, which must be taken into account together when investigating infringements against them. Therefore, in this study, I examined the sharing of recordings not only from the point of view of personality rights, but also contrasted it with the family law rules. We concluded that in the case of children, the violation of the right to image and voice recording can cause not only the missing consent, even than the child had been not involved and can not share his or her own opinion, so he or she has been left from the decision procedure.
The combined conjunctive fulfilment of these conditions may result in the lawfulmakeing and publishing of the recording. The legal consequences of violations are also unique, because in addition to violating their personality rights, I think the family law effects are also - even not better - important, which was illustrated in this study.
Felgyorsult világunk változásait a jogi szabályozási háttér is igyekszik követni. Kétségtelen azonban, hogy egyre több olyan társadalmi jelenség, változás következik be, amelyek jogi megítélése egyre nagyobb kihívások elé állítja mind a jogalkotást, mind a joggyakorlatot. Ennek egyik példája lehet a tanulmány központi kérdését képező sharenting jelensége, a digitális platformok, a közösségi média ugyanis mindennapjaink részévé váltak. A képmás- és hangfelvételhez való jog, mint önálló személyiségi jog szabályozása és joggyakorlata már jelzi ezeket a változásokat, sok esetben azonban az jelenti a különböző helyzetek jogi megítélésének problémáját, hogy kizárólag a személyiségi jogok szabályozásának oldaláról vizsgálják a jogsértések megtörténtét. Jelen tanulmányban azonban arra kívánja felhívni a figyelmet, hogy vannak olyan csoportok, például a gyermekek, akik kiszolgáltatott helyzetükből adódóan más megítélés alá kell hogy essenek, mint a társadalom többi tagja. Ezt biztosítja az, hogy a gyermekek védelmének
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kiterjedt magánjogi és közjogi szabályozási rendszere van, amely szabályanyagot együttesen kell figyelembe venni az őket ért jogsértések kivizsgálása során. Éppen ezért jelen tanulmányban a felvételek közzétételét nem csak a személyiségi jogok oldaláról vizsgáltam meg, hanem a családjogi szabályanyaggal ütköztettem, amely során arra a megállapításra jutottam, hogy a gyermekek esetében a képmás- és hangfelvételhez való jog sérelmét nem csak az elkészítéshez vagy a közzétételhez való hozzájárulás hiánya valósítja meg, hanem többletfeltételként a családjogi szabályozásból adódóan a gyermek döntésbe való bevonása is a feltételrendszer részét kell, hogy képezze. E feltételek együttes, konjuktív megvalósulása eredményezheti azt, hogy a gyermek esetében a felvétel elkészítése és közzététele jogszerűnek minősül. Ezen túlmenően a jogsértések jogkövetkezményei is sajátosan alakulnak, mert azon túlmenően, hogy a személyiségi jogaik sérülnek, ezáltal a személyiségvédelmi jogkövetkezmények alkalmazhatóak, a családjogi joghatások is beállhatnak a szülők vonatkozásában a tanulmányban szemléltetett szülői felügyeleti jog korlátozásának formájában. ■
NOTES
* Supported by the ÚNKP-22-4 New National Excellence Program of the Ministry for Culture and Innovation from the source of the National Research, Development and Innovation Found.
[1] Schultz Márton: A személyiségi jogok vagyoni értéke és tárgyiasulása. ORAC Kiadó Kft. Budapest, 2022. 84. p.
[2] Draft of Private Law Act 108. §
[3] Act IV of 1959 on the Civil Code, 80. §
[4] Lenkovics Barnabás - Székely László: Magyar Polgári Jog - A személyi jog vázlata. Eötvös József Könyvkiadó. Budapest, 2000. 113. p.
[5] Anna-Maria Iskül-Kristi Joamets: Child right to privacy and social media - personal information oversharing parents. Baltic Journal of Law and Politics 2021/2. 103-104. pp.
[6] compare with Halász Csenge: Személyiségi jogok a közösségi médiában - Új kihívások a Bírói gyakorlat tükrében. Publicationes Universitatis Miskolcinensis Sectio Juridica et Politica, 2019/1. 341-357. pp.
[7] Anna Brosch: Sharenting: Why do parents violate their children's privacy? The New Educational Review 2018/4. 75-85. pp.
[8] Keltie Haley: Sharenting and the (potential) right to be forgotten. Indiana Law Journal 2020/3. 1005. p.
[9] Brosch 2018. 75-85. pp.
[10] CC 2:48. §, section (1).
[11] CC 2:11. §
[12] CC 2:13. §
[13] compare with CC 2:12. § and CC 2:14. §
[14] Kriston Edit: Gyermekvédelem. Novotni Alapítvány. Miskolc, 2020. 21. p.
[15] CC 4:146. § section (2) .
[16] Barzó Tímea: A szülői felügyelet családvédelmi aspektusai. In: Mélypataki Gábor (szerk.) A szociális jog aktuális kérdései Magyarországon és az Európai Unióban. Miskolci Egyetem Állam- és Jogtudományi Kar. Miskolc, 2017. 6-8. pp.
[17] CC 4:165. § section (1) and CC 4:167. § section (1).
[18] CC 4:175. §
[19] Kriston 2020. 22. p.
[20] compare for example, CC 2:12. § section (2).
[21] BDT 2019.4001.
[22] See in detail: CC 2:12. § section (4), CC 2:14. § section (3), CC 4:148. §
[23] CC 4:163. § section (1).
[24] compare with CC 4:149. §, CC 4:169. §
[25] BDT 2018.3877.
[26] Kriston 2020. 49. p.
[27] Filó Erika-Katonáné Pehr Erika: Gyermeki jogok, szülői felelősség és gyermekvédelem. HVG-ORAC. Budapest, 2015. 227. p.
Lábjegyzetek:
[1] The author is assistant lecturer, University of Miskolc, Faculty of Law consultant, Curia.
Visszaugrás
