A father was fined for publishing photos of his nine-month-old daughter on Facebook.
May I publish photos of my children on Facebook?
It depends:
A criminal case before the Hanover District Court concerned the publication of photos of his nine-month-old daughter on Facebook. The father no longer held parental custody; instead, the daughter's grandmother did. While she permitted the father to take the photos for personal viewing, she explicitly prohibited their publication.
The Hanover District Court subsequently sentenced the father to a fine of 40 daily rates, each amounting to €40.
When may I publish photos of my children online?
You must ensure that you are authorized to publish photos of your children. Generally, pursuant to §§ 1626, 1629 of the German Civil Code (BGB), the child's parents are entitled to decide if, where, and how to publish photos of their children. However, if parental custody no longer resides with the parents, you must obtain the consent of the legal guardians, ideally in writing.
May I publish photos of other people's children online?
This situation can arise more quickly than you might anticipate. A lively children's birthday party, a few charming photos of children, and suddenly these images are 'online.' Many applications from prominent social media platforms offer integrated camera functionality within smartphones. When this feature is utilized, photos are typically published instantaneously.
The answer to this question is: It depends. If you have obtained the consent of the legal guardians, you are permitted to publish the children's photos. Otherwise, you are not.
May I take photos of other people's children?
If you wish to err on the side of caution, obtain the consent of the legal guardians. However, it could be argued that this constitutes a purely personal matter, thereby excluding it from the scope of the GDPR.
We recommend a pragmatic approach: If you have initially taken photos without explicit consent, inquire with the legal guardians whether they approve. If they do, this legally constitutes permission, and you may retain the photos (but do not publish them!). Otherwise, delete the photos.
Source: Hanover District Court, Judgment of 03.02.2021, Ref. 244 Ds 2741 Js 12361/19
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GoldbergUllrich Attorneys at Law 2021
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
