Mummy is an influencer. What’s allowed?
Influencer parents sharing images of their under-age children is a much debated topic. But you can think of it what you like. In a new research article, two legal experts from Aarhus BSS, Aarhus University, point out that the law is actually quite clear and based on fundamental principles.
Their workplace is the social media. Instagram and YouTube are particularly popular channels with them for sharing all sorts of things with their followers and the wider world. The more followers they have, the more interesting they are to companies, organisations and others as promoters of special viewpoints, messages and products.
They are known as influencers, a word which, in the context of social media, is a relatively new addition to the English language, emerging in the 21st century.
And influencing can actually be quite a lucrative business. One of the highest-paid influencers in Denmark is 45-year-old Mascha Vang, who by her own account generated a monthly income of around half a million Danish kroner in 2023. She has more than 230,000 followers on Instagram.
However, Mascha Vang is also known for having posted images of her now 12-year-old daughter Hollie Nolia for several years – something that appears to be dividing public opinion.
Børns Vilkår, a Danish humanitarian organisation working for the welfare of all children, has advocated a general ban on the featuring of minors on social media platforms for commercial purposes, and two legal experts from Aalborg University have argued in an article in Tidsskrift for Familie- og Arveret, a Danish journal of family and inheritance law, that this is already unlawful – or at least very close to contravening the Danish Data Protection Act (Databeskyttelsesloven).
The argument is that under the Data Protection Act, children actually enjoy special protection against the sharing of their personal data, but that the Danish Data Protection Agency, which is responsible for monitoring the application of the Data Protection Act, is not enforcing children’s rights.
The question is how much parents are allowed to decide, and they are actually able to decide almost everything on behalf of their children
Caroline Adolphsen, professor, Department of Law, Aarhus BSS
Far-reaching and fundamental rights
However, according to two legal researchers from Aarhus BSS, Aarhus University, the Data Protection Act is not where we should start. They emphasise that parents’ right to make decisions on behalf of their minor children and their responsibility for their children’s well-being are both far-reaching and fundamental principles of the Danish welfare and legal system.
“If you start by looking at special legislation, you risk overlooking the fact that the protection of the child is already enshrined in the design of the basic legal framework, and that the solution (as will most often be the case) can be found there,” write Professor of Welfare Law Caroline Adolphsen and Research Assistant Lukas Callesen in an article in Tidsskrift for Familie- og Arveret.
And the basic legal framework in this case is the Danish Act on Parental Responsibility (Forældreansvarsloven), the two legal experts from AU point out. This is where the relationship between minors and their legal guardians is legally defined.
“The question is how much parents are allowed to decide, and they are actually able to decide almost everything on behalf of their children, except, of course in cases of neglect, violence or abuse. In such cases, the authorities – the municipalities – are obliged to intervene, as described in the Danish Child’s Act (Barnets lov), and that is the safety net that exists,” says Caroline Adolphsen.
To illustrate the scope of the Act on Parental Responsibility, the researchers mention parents’ right to practise and exercise a religion. Both the right to family life and freedom of religion are rights protected by conventions, which would be undermined if minors were to have an equal say in whether or not to participate.
“This would mean that the family would not be able to live a shared life as a family and with shared daily routines,” they write in the article.
Political stance
According to the two researchers, it also makes no sense to involve the Danish Data Protection Agency, which is responsible for monitoring compliance with data protection legislation, in the matter.
“Protecting the rights of children is not part of the remit of the Data Protection Agency, and so if parents want their children to feature on social media platforms, then they are free to do so,” says Lukas Callesen.
The key element of the Data Protection Act is consent, and since minors cannot, as a rule, give their consent – only legal guardians can give consent on behalf of minors – the Data Protection Act does not prevent parents from posting images and personal information about their children on social media.
The two legal researchers acknowledge that letting your children appear on social media in commercial contexts, for example, may be problematic.
“But whether you like it or not, it is a political viewpoint, and mixing political viewpoints with points of law is problematic. Also, it does not make sense to mix elements from different legal sources, while it is often better to apply existing rules rather than having to invent new ones,” says Caroline Adolphsen.
Facts
We strive to comply with Universities Denmark’s principles for good research communication. For this reason, we provide the following information as a supplement to this article:
| Type of study | The research was conducted using the legal dogmatic, or doctrinal, method. |
| External collaborators | None |
| External funding | None |
| Conflict of interest | None |
| Other | No |
| Link to scientific article | Mindreåriges arbejde i forældremyndighedsindehaverens virksomhed (In Danish) |
| Contact information | Lukas Callesen, lc@law.au.dk, Department of Law, Aarhus University. Caroline Adolphsen, ca@law.au.dk, Department of Law, Aarhus University. |