O DIREITO À IMAGEM DE CRIANÇAS E ADOLESCENTES SOB A AUTORIDADE PARENTAL DE PAIS INFLUENCIADORES DIGITAIS: O FENÔMENO DO (OVER)SHARENTING E A RESPONSABILIDADE CIVIL DOS GENITORES

Abstract

The development of technological means, especially social media, has exposed personality rights - values that are fundamental to the protection of attributes related to human existence -to new forms of violation. In this context, the right to image has acquired particular relevance, especially when examined from the perspective of children and adolescents, human beings who are inherently more fragile and vulnerable. The present study, therefore, sought to investigate the phenomenon of sharing images, data, and information of children and adolescents by their parents who are digital influencers, a phenomenon termed sharenting, and, when such sharing is exercised excessively, oversharenting. To analyze this paradox - given that it involves a situation in which the (over)exposure originates from those who, a priori, should protect their children’s rights and ensure the healthy and safe development of their personality - a bibliographic research method was employed to construct the theoretical framework capable of addressing the problem, through the consultation of books, scientific articles, theses, and dissertations, as well as the examination of national legislation and judicial decisions related to the topic. Moreover, the deductive method and qualitative approach were deemed appropriate for the development of the study. The main purpose of the monograph consisted of analyzing the (im)possibility of the peaceful and harmonious coexistence between the rights of digital influencer parentes - such as the right to freedom of expression, grounded in parental authority- and the rights of their children, primarily the right to image, underpinned by the principles of comprehensive protection, greater vulnerability, and the best interests of the child and adolescent, within the context of (over)sharenting. The apparent conflict between the rights of both parties required the use of the balancing technique, since these are fundamental rights that protect equally important interests. Thus, it was concluded that, in contemporary society - where the use of social media and technological devices is inseparable from its lifestyle - it is nearly impossible to conceive a scenario in which digital influencer parents, or any parents, do not share images of their children at some point during childhood or adolescence, considering that digital tools have become part of human interaction. On the other hand, minor children, whose vulnerability is intrinsically linked to their age, must not have their rights violated, particularly those aimed at safeguarding their existential aspects - such as the right to image - due to a societal urge for exposure that affects even the parents. Therefore, the peaceful and harmonious coexistence of both parties’ rights in the context of sharenting was considered possible, although it requires constant monitoring due to the risks involved and the potential for abuse. Conversely, in cases of oversharenting, peaceful coexistence is not deemed viable, as it presupposes the violation of children and adolescentes right to image, for which parents may be held civilly liable, including in the future, once the children attain full legal capacity.