Baby pictures on display? Think twice and secure consent.

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What could be more innocent than a baby’s picture, or more moving that one of a mother or parents holding their newborn for the first time? Perhaps for the new family and the healthcare providers, but not necessarily for every beholder. Few things can make someone more personally identifiable than a photograph, and the care of a child, even more so a newborn, goes beyond healthcare. Less than a year ago a columnist for Slate wrote a piece on the pitfalls and perils for a child’s privacy and safety that may stem from posting her across social networks (there’s abundant literature to that regard online). Parents have certainly been keen since forever in capturing the fleeting moments of childhood for endearing recollection in later years, and sharing them on networks such as Facebook, Instagram, Flickr and the like may seem like the day in age equivalent of having your guests at social gatherings look at the Kodak carrousel slides or 8mm films of yesteryear… only it’s not. Those viewings remained in the privacy and care of the venues where they were held and of the people who attended; nowadays

For sure products such as Google’s make it possible to store for posterity heaps of cherished memories that would otherwise be lost to the mists of time. But parents should also consider that the processing of data with new capabilities for its mining, facial recognition, etc, and asymmetry in privacy regulation make it hard to foretell what may become of an image or video that you may believe is cute, but that their child could regard as humiliating or offensive later in her life.

Now those involved in the miracle of birth (starting with parents) have a duty to be mindful of what they do with the personal data of the child and her family, as it is then that they are the more vulnerable. I recall that sometime about 12 or 13 years ago, when some of the first bills that were mashed up into Mexico’s current data protection law were being discussed in the Commerce Committee of the Chamber of Deputies a representative of the Secretariat of Economy, who had recently become a mother, voiced her personal concern for having received an unsolicited basket with gender-specific baby care products at her home shortly after her delivery.

The New York Times ran a piece on how the accustomed collages of baby pictures in the offices of the obstetricians and midwives who assisted in their delivery are being moved out of the sight of the public or stored with their files and charts, as their display absent a properly executed consent form drafted under the Health Information Portability and Accountability Act (HIPAA), cutting against an age-old practice for a line of work that’s largely built on word of mouth, but founded on trust. As per that piece, heaps of baby pictures that used to go on walls are now filed with patient charts in times when “selfies” in the most varied of contexts are commonplace.

Mexico has yet to harmonize the statutes and regulations that intersect with its novel privacy law, but it’s a fact that pictures also constitute personal data covered under the Federal Law for the Protection of Personal Data in Possession of Private Parties and Regulations thereto. There’s an entry in this blog where I go over the issues for legal interpretation and practice in dealing with images that stem out of this; in the particular case of celebratory baby pictures in the context of the privacy of health information and records, the Mexican Official Norm 004-SSA3-2012  only has one provision referring to the publication of photographs in health records that make it possible for the patient to be identified, limiting it to medical literature, teaching or research, stating that written consent from the patient shall be required, and that necessary measures shall be taken so that said patient may not be identified, which must be written into informed consent notices for the purpose of providing health services, but which anonymization would undermine the whole purpose of baby or delivery pictures displayed as the newspiece from the Times refers.

Therefore, and until health authorities in Mexico undertake and conclude the aforesaid work of harmonizing privacy laws and issue express criteria on such matters, it could be assumed that pictures taken by the parents, or by health care providers at their request, to commemorate the birth of their children might not be regarded as materials comprised with the definition of “Health Record” under said Norm, as they are not intended for recording, annotating, attesting or certifying the part of the health care providers in the patient’s care and, therefore, could be thought of as not subject to it, but to the more general privacy law, whereby individuals are to be explicitly informed as to the use of their images for purposes of promotion and/or marketing, and their express consent therefore is required since all information concerning health is provided to be sensitive, regardless of how obvious or not pregnancy or birth could be.

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