The GDPR recognises specific protection for minors, given their particular “vulnerability” resulting from their lack of or reduced awareness of the risks, consequences, and their rights regarding data processing.
A particularly sensitive issue in this area is the online dissemination of images of children and minors, which exposes them to significant risks arising from the possible unlawful use of their photographs/videos and, more generally, their data by third parties, and from the possible repercussions on their social life and future relationships.
The Italian Data Protection Authority (‘Garante per la protezione dei dati personali’) recently addressed this issue with a decision of particular interest due to its scope, adopted against a nursery that published photos and videos of babies and infants online.
Firstly, the Authority confirmed that compliance with personal data protection legislation must be carried out taking into due consideration not only the fact that personal data of minors are being processed, but also the specific age group of the minors concerned. Toddlers and infants, in particular, must be afforded a higher level of protection, given their particular vulnerability due to their age.
In this sense, the online publication of images of young children, which in the case examined also concerned particularly sensitive contexts with regard to the need to protect their dignity (e.g. use of toilets, infant massage, etc.), was considered to be in conflict with both the rules on personal data protection and the protection of fundamental human rights recognised by the Italian legal system, starting with the Constitution.
The publication of these images was also deemed unlawful because it was not attributable to the public interest objectives that nurseries – including private ones – are required to pursue.
In this context, it is significant that the Garante considered that even parental consent is not sufficient to justify such processing. The power and duty of those exercising parental responsibility to grant or withhold consent is in fact limited by the principle of pursuing the “best interests of the child”, which, in the case described, could not be recognised in the publication of images for purposes that were considered promotional rather than educational.
The procedures defined by the nursery for obtaining consent were, in any case, found to be non-compliant with current legislation in many respects. For example, consent could not be considered informed because the form drawn up for its collection contained only generic references to the methods of processing the images of the children, which did not allow parents to understand the specific processing activities that the nursery intended to carry out.
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