Photos of children on Facebook can land you in jail

A father was fined for posting photos of his nine-month-old daughter on Facebook.

Am I allowed to publish photos of my children on Facebook?

It depends:

A criminal case before the Hanover Regional Court concerned the publication of photos of his nine-month-old daughter on Facebook. The father no longer had custody, but the daughter's grandmother did. She allowed the father to view the photos, but not to publish them.

The AG Hannover then sentenced the father to a fine of 40 daily sentences of €40 each.

When am I allowed to publish photos of my children on the internet?

You must ensure that you are entitled to publish photos of your children. Basically, according to §§ 1626, 1629 BGB (German Civil Code), the parents of the child can decide whether and, if so, where and how to publish photos of their children. However, if custody is no longer with the parents, you must obtain the consent of the custodians, preferably in writing.

Am I allowed to publish photos of other people's children on the internet?

The situation comes sooner than you think. A fun children's birthday party, a few nice photos of children and the photos are already "on the internet". Many apps of well-known social media platforms offer integration of the camera in the smartphone. If you use this function, photos are usually published immediately.

The answer to the question is: It depends. If you have the consent of the custodians, you may publish the photos of the children. Otherwise you are not allowed to do so.

Am I allowed to take photos of other people's children?

If you want to be on the safe side, get the consent of the guardians. However, one could argue that it is a purely personal matter and the scope of the GDPR is excluded.

We recommend a pragmatic approach: If you initially took photos without consent, ask the guardians if they agree. If they do, this legally constitutes permission and you may keep the photos (do not publish them!). Otherwise, delete the photos.

Source: AG Hannover, judgement of 03.02.2021, ref. no. 244 Ds 2741 Js 12361/19

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Julius Oberste-Dommes LL.M. (Information Law)

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