In the case of IVT v Romania ( ECHR 189) the Fourth Section of the European Court of Human Rights found that the domestic courts had breached an 11 year old ‘s Article 8 rights in dismissing her claim based on the broadcast of an television interview which had been conducted without obtaining parental consent. Although the child’s face was blurred she was still identifiable on the broadcast. The Court emphasised that parental consent was not a mere formality but was an important safeguard for the rights of children.
In 2012 a schoolmate of the applicant died by falling out of a train on a school trip. A reporter for a Romanian television channel interviewed the applicant, then aged 11, along with some other students about the death. The consent of her parents was not sought, and her teachers were not present.
In the interview, the applicant stated, among other things, that she had heard that the deceased child had fallen out of a train without a teacher present. In particular, she said, regarding the presence of teachers, “there should have been better care for pupils to keep them safe”. The interview was broadcast that day. The applicant’s face was blurred but her voice was not disguised. A transcript was posted on the channel’s website with the title “Schoolmates of the girl who fell out of the train are shocked. The pupil was going to the toilet when the tragedy occurred”. According to the applicant, she suffered from the negative attitude of students, staff and the school authorities towards her following the interview.
In 2013 the applicant sued the broadcaster for compensation. The District Court found in her favour, ordering damages of approximately €40,436 because of the lack of parental consent. In particular, it found that even if her face had been blurred, she still could have been recognised, if only by her voice which had not be distorted in any way in order to protect her image or privacy .
In 2014 that decision was overturned on appeal, citing journalistic freedom and public interest, and holding that the company should not be liable for the behaviour of those in the school community. The Court of Appeal dismissed the appeal 2015, upholding the lower court’s reasoning, holding that parental consent would not have changed the situation.
The application was lodged on 9 July 2015. The applicant alleged that the authorities had failed to protect her Article 8 right to respect of private life.
The Court noted that the concept of “private life” extends to aspects relating to personal identity, such as a person’s image:
“A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right of each person to the protection of his or her image presupposes the right to control the use of that image. Whilst in most cases it involves the possibility for an individual to refuse publication of the image, it also covers the individual’s right to object to the recording, conservation and reproduction of the image (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 87 and 89, 17 October 2019 and, for a case which also concerns the photograph of a child taken without parental consent, see Dupate v. Latvia, no. 18068/11, § 40, 19 November 2020)” 
The Court reiterated that under the Convention, States were obliged to secure respect for private life even in the sphere of relations of individuals between themselves . Article 8 imposed positive obligations to take into account the particular vulnerability of young persons . The case required an examination of the fair balance to be struck between the applicant’s Article 8 rights and the rights of the broadcaster and the journalist to impart information as guaranteed by Article 10. This involved the application of the well-known Axel Springer criteria .
In this case, the interview had been about a matter of public concern . The applicant was not a public or newsworthy figure. She had been a minor and so the requirement of parental consent was an important element in the assessment of the case .
As to the circumstances of the interview, its content and consequences parental consent was a safeguard for the protection of the applicant’s image rather than a mere formal requirement. The domestic courts had not examined the steps taken by the broadcaster to protect the identity of the applicant .
The Court emphasised that
“even where a news report makes a contribution to the public debate, the disclosure of private information, such as the identity of a minor who witnessed a dramatic event, must not exceed the latitude accorded to editorial assessment, and has to be justified” 
The Court expressed doubts as to the relevance to a debate of public interest of the opinions of a child who had not witnessed the event in question. The Court noted in particular that the relevant National Audiovisual Council regulations stated “the right of the minor to his or her private life and private image prevail[ed] over the need for information, especially in the case of a minor in a difficult position”. The Court observed that the domestic courts had found that the applicant had suffered from severe distress and anguish following the broadcast .
The Court concluded that the domestic courts in this case had only superficially balanced the question of the applicant’s right to private life and the broadcaster’s right to free expression. The considerations set out in the judgment, particularly “the young age and the lack of notoriety of the applicant; on the little contribution that the broadcast of her interview was likely to bring to a debate of public interest and on the particular interest of a minor in the effective protection of her private life” were sufficiently strong reasons to substitute its view for that of the domestic courts .
As a result, the Court found that there had been a violation of Article 8 of the Convention.
In this judgment the Court reiterates the importance of the effective protection of the privacy rights of children. There is a positive obligation on the state to protect such rights and to take into account the vulnerability of children. In this case, although the applicant’s face was blurred in the interview, her Article 8 rights were nonetheless violated by the broadcast.
A person’s image is an essential aspect of their personality and they have the right to control the use of that image. It is clear that any use without consent requires clear Article 10 justification. In the case of a child the use of the image requires parental consent and, without it, the use of the image is most unlikely to be justified. The disclosure of the identity of a child in the media requires a particularly strong “public interest” justification and it is clear that none was present in this case.
The judgment suggests that if the UK media publishes unconsented photographs of children – even with their faces pixeallated – this is likely to be a breach of their Article 8 rights and, as a result, a misuse of their private information (even when the images are taken in public places).
Hugh Tomlinson QC is a member of the Matrix Chambers media and information practice group and editor of Inforrm.