Social networks have become an essential part of many people who "need" to share their experiences, His way of life, that is to say, social networks have become a showcase where we show ourselves to the world, sometimes, Knowing the scope that this decision can have and in many others without knowing what we are doing.
No one has been left out of social networks, the companies, the professionals, people in the sphere of their private life and even minors, we have succumbed to this effect. It is true that social networks have been with us for many years., and they have evolved. From that beginning with Facebook, so new at that time, going through the instagram, to the latest of the social networks that cause a furor like Tik Tok, we have been using them, sometimes actively publishing post, photographs and videos, and in others, we have taken a more reserved position, watching what people are doing around us.
The truth is most of us are not aware that when we publish something on one of the social networks, we lose control of the publication, and this can cause us many headaches. Even when that "publication" has been made with the greatest "innocence".
But what happens when a post on a social network, has been done without our consent?, it's more, What happens when that publication affects a minor? Recently the Spanish Data Protection Agency (AEPD) has ruled on the video publication of a minor on the Instagram social network. The events took place in a Tarragona town, where the minor participated in an activity of a sports club. Something like the publication on Instagram of a video of a sporting activity that in the eyes of anyone could go unnoticed and even be considered normal., has meant a sanction for the sports club of 5,000.-€.
Let's analyze the case, the mother of the minor filed a claim with the AEPD for the publication of a video in which her daughter appeared without her mandatory authorization. first question, We are facing a subject related to data protection? The answer is affirmative to the full extent.. Let us remember that the image of a person under article 4.1 of the General Data Protection Regulation (RGPD) It is a personal data and therefore the filming of a video, and its exposure on a social network falls within the scope of the GDPR. Indeed, the GDPR defines as personal data (art.4.1.) ”any information about an identified or identifiable natural person ("the interested"); An identifiable natural person shall be considered any person whose identity can be determined, directly or indirectly, …..”.
So, as first conclusion, we would be in the presence of data processing carried out by the sports club, who would act as data controller.
The second important aspect is the legality of the treatment., needed, in any case, a legal basis that legitimizes that treatment. The answer to this question, so important, is determined in the article 6.1. of the GDPR where it is stated that "Processing will only be lawful if at least one of the following conditions is met: a) the interested party gave his consent for the processing of his personal data for one or more specific purposes”. So, needed, In the case at hand, the consent of the interested party, in this case, as it is a minor, the consent of those exercising parental authority is required, that is to say their parents.
The second conclusion, is that we can not do what we think is right. In data protection everything, absolutely everything, carries some consequences, and post a video of a minor without parental consent, is considered by the Organic Law on Data Protection and Guarantee of Digital Rights (LOPDGDD), like a very serious offense (art. 72 LOPDGDD) and the effects can be devastating for the activity, in this case the sports club, but they can be even for any company or professional that processes personal data of its clients, without taking into account the regulation of data protection regulations. This situation can be extrapolated to any activity, For example, it could occur in treatments that are carried out in dental clinics that want to show the good results of certain oral treatments on social networks.. It is very important to comply with data protection regulations.
So, without getting into analyzing the reasons for the publication of the video on Instagram, by the sports club, that surely he had no other intention than to divulge the sporting activity, something that seems so unimportant, It can ruin the club's economy by imposing a penalty of €5,000.-€ on it by the AEPD. It is very important to always analyze the possible consequences of our actions in data protection, and is that this, like many other legal aspects, it gets more and more complex.
From the Data Protection Department of Delyser Abogados, we take care of advising our clients on this matter and we can make ourselves available to all those who seek answers and want to comply with data protection legislation. Experience, quality and prestige.
F. Javier Lopez Alonso
lawyer.
Head of the Data Protection Department and NNTT
Delyser Abogados