Mothering Sunday

Today is Mother’s Day, and the gossip columnists have been busy documenting a social media disagreement between celebrity mom, the actress Gwyneth Paltrow, and her 14 year old daughter Apple Martin.

Both are Instagram users. However, Apple’s account is set to private and has only 1, 218 followers.

Paltrow had taken a selfie of the two of them which she posted on Instagram. It was rather a clever pic, as it shows Paltrow from two angles, one image reflected in her daughter’s ski goggles, which also reflect the ski trail in front that they are both looking at.

Apple registered a polite protest on her mother’s Instagram feed, which has 5.3 million followers:

Mom, we have discussed this. You may not post anything without my consent.

Evidently Paltrow brooks no public opposition from her offspring, replying “You can’t even see your face!” Apple’s comment was deleted, the picture remains online, and Paltrow’s followers engaged in an animated debate about the rights and wrongs of this practice, which is known as “over-sharing”.

The reality, I am afraid, is that if parents post photographs of their children on public platforms, or allow their children to do so, then the photographs are out there, and anyone anywhere in the world may view or copy them. In practice, it can be very difficult to do anything about this. A number of news outlets have reproduced the photo in question, thereby bringing Apple and her issues with her mother’s action to an even wider audience.

Ironically, Paltrow is known for being extremely sparing in relation to posting pictures of her children. For someone in the public eye as much as she is, it is a difficult balance to strike. The fact that her daughter Apple has set her own Instagram account to Private suggests that for now, at any rate, the daughter values a measure of privacy, and is not seeking to put herself into the public domain.

It seems highly unlikely that this family contretemps will go any further, though it is possible to envisage scenarios where, say, an adult child wishes a parent to take down posts documenting an earlier stage of their life. That could lead to some interesting debates about a “right to be forgotten”, as far as your family’s historic publications about you are concerned.

Unless you are a celebrity parent with a public to be kept interested in you, it may be more prudent not to put personal family snaps into the public domain in the first place. But, if you do decide to do so, then stopping others from making use of them may prove tricky.

There may be technical issues of copyright, for example, subject to the terms of use of the platform in question; but asserting IP rights against random members of the public, whose identities may not be known, and who may be located in other jurisdictions, can be far from straightforward. If the photos are placed on an open to view platform, which anyone can access, then in a very real sense the poster has lost control over his or her photos.

Some sites have now upped their game, and provide a menu of options for posters wishing to assert copyright or consent to what is known as regramming, or reposting (although this only applies to fellow users of the platform). Some will allow photographs to be watermarked with the owner’s name and a copyright sign. But if photos are accompanied by tweet buttons, for example, it’s reasonable to assume that tweeting them is both invited and permitted.

From May 2018, Article 8 of the EU’s General Data Protection Regulation (GDPR) set a default age of consent of 16 for children’s consent to the processing of their personal data in respect of the direct offering of information society services, though member states can deviate from that. Different states have imposed different ages for consent for the processing of children’s data, ranging from 13 to 15. The UK has opted for 13.

France has opted for 15, but has also imposed a requirement that the parents of a minor under 15 must consent jointly with the minor to data processing, in relation to the direct offering of information society services.

This will no doubt give rise to issues about the obtaining or giving of consent, in certain instances, and I expect that ingenious lawyers will come up with arguments and reasons to litigate, in certain circumstances. The Gwyneth/ Apple spat may be a harbinger of things to come.