J. Cholajda – The right to protection of one’s image enshrined not only in the Civil Code and copyright law?

The right to protection of one’s image enshrined not only in the Civil Code and copyright law? The amendment to the Act on the Care of Children Under the Age of 3 and the ban on the public disclosure of a child’s image, and Article 81 of the Act on Copyright and Related Rights.
Yesterday, the President signed the Act of 31 July 2026 amending the Act on the Care of Children Under the Age of 3 and certain other Acts. Among the many measures to be introduced, the amendment also includes a total ban on the public dissemination of images of children under the age of 3 by entities running crèches, children’s clubs or day-care centers – regardless of whether the child’s legal guardian has given their consent.
This ban is due to come into force on 1 September 2027, but its structure is worth examining at this stage.
Exceptions permitting the publication of a child’s image include situations where:

• the child is a detail within a wider scene, e.g. a gathering, a landscape or a public event;

• the child’s image is made available exclusively to the parents of children in the care of a crèche, children’s club or day-care centre.

Failure to comply with the above ban may result in: supervisory measures being taken by the commune head, mayor or city mayor, even outside the supervisory authority’s established supervision plan; an obligation on the part of the facility to remove the material within a specified time limit, and even the removal of the entity operating the crèche, children’s club or day-care centre from the newly introduced electronic register of childcare institutions, which will prevent it from continuing its activities.
However, the provision described is not the first restriction on the dissemination of an image under Polish law. A natural person’s image is protected under the Civil Code as a personal right. The scope and rules of this protection are specified in Article 81 of the Act of 4 February 1994 on Copyright and Related Rights, according to which the dissemination of an individual’s image without their consent is, in principle, prohibited.
The exceptions in the Copyright Act where no authorisation is required for the dissemination of an image are:

• receiving an agreed payment for posing;

• the depiction of a person of public renown whose image was captured in connection with the performance of their public functions, in particular political, social or professional ones;

• cases where a person’s image constitutes merely a detail of a gathering, landscape or public event (and therefore, by analogy, as in the newly introduced Act).

In the event of the dissemination of an image without the consent of the person depicted, Article 83 of the Copyright Act refers to the application of Article 78(1) of that Act with regard to the claims that may be raised. These include: a demand to cease the infringements, a demand to remedy the effects of the infringement (e.g. in the form of a public apology), and, in the case of a culpable infringement, compensation or the payment of a sum of money to a charitable cause of the person’s choice.

As can therefore be seen, despite the apparent similarities between the prohibition on the public dissemination of images of children under the age of 3 and the right to protection of one’s image under copyright law, the two regimes differ in terms of the requirement for consent, the consequences of breaching these provisions, and the underlying purpose. Whilst Article 81(1) of the Copyright Act aims to protect an individual’s autonomy in deciding how their image is disseminated (and this autonomy is, in principle, unlimited), whereas in the case of the new ban, the priority has become, above all, the protection of children’s safety, even at the cost of restricting parents’ autonomy in deciding on the public dissemination of their children’s images. It is also worth noting that the protection – and potential sanctions – under these provisions are cumulative. The same post by a nursery on Facebook may simultaneously give rise to administrative liability under the amendment, the GDPR, as well as civil liability (under copyright law and the Civil Code).