On 25 May 2018, the General Data Protection Regulation (GDPR) came into force throughout Europe. Since the entry into force of the GDPR, there has been a dispute as to whether the Art Copyright Act (KUG) continues to apply after the GDPR comes into force.
Problem
In principle, consent is required for the publication of images under both the GDPR and the KUG. However, consent under the GDPR is subject to strict formal requirements and can also be revoked at any time pursuant to Art. 7 (3) of the GDPR.
The KUG, on the other hand, does not stipulate any specific formal requirements for consent in Section 22 KUG and revocation is also only possible for special reasons. In addition, there are exceptions in the KUG according to which consent is dispensable (Section 23 KUG). For this reason, consent was often dispensable when the KUG was in force.
It is questionable whether the KUG will continue to apply after the GDPR comes into force.
It is argued that the KUG is superseded by the GDPR and is no longer applicable. The legislator would first have to create a new provision to protect freedom of expression and information on the basis of Art. 85 DPA. This view is held by some supervisory authorities, among others.
Decision of the Cologne Higher Regional Court
In its decision of 18.6.2018 - 15 W 27/18 - the Cologne Higher Regional Court has now ruled that the KUG continues to apply even after the entry into force of the GDPR, at least for the journalistic sector.
However, it has not been clarified to what extent the KUG should also be relevant for the other fundamental rights under Article 5 GG.
Opinion of the State Commissioner for Data Protection of Lower Saxony
The LfDI Lower Saxony informed in this context:
"Correct: The Art Copyright Act (KUG), which was applied to the publication of photographs of persons in the past, can no longer be used for every publication of photographs of persons (portraits) since the application of the GDPR (i.e. since 25 May 2018), according to the State Commissioner for Data Protection of Lower Saxony. In future, recourse to the KUG will only be possible for journalistic, artistic, scientific or literary purposes. Nevertheless, for those who want to process personal photographs for other purposes, not much will change.
Every creation and publication needs a legal basis.
The KUG has the principle that the consent of the person(s) depicted is required for the publication [1] of photographs of persons. Consent can only be waived in the exceptional cases regulated in Section 23 KUG. Since 25 May 2018, any processing of personal data that does not fall within the scope of the KUG must be based on a legal basis under Article 6(1) of the GDPR. Here, among others, the following come into consideration:
- a declaration of consent (Art. 6 para. 1 letter. a DS-GVO),
- a contract (Art. 6 para. 1 letter b DSG-VO) or
- a balancing of interests (Art. 6 para. 1 letter f DS-GVO).
..... Photographs of persons may be processed not only within the scope of application of the KUG, but also on the basis of the GDPR, and consent is not required in every case. However, if the production and/or publication of personal photographs is based on a balancing of interests pursuant to Art. 6(1)(f) DS-GVO, we recommend that this be carried out very carefully in each individual case and not lightly disregard the interests of the data subjects."
View
It remains to be seen whether the statement of the LfDI Lower Saxony can be understood as meaning that the KUG is no longer applicable, but otherwise "everything remains the same" via the regulation of § 6 para. 1 f DSGVO.
The Higher Regional Court of Cologne and the LfDI Lower Saxony have provided a little clarification in the journalistic field. Unfortunately, uncertainty remains in the other areas.
Please do not hesitate to contact us if you have any questions on this topic.
GoldbergUllrich Attorneys at Law 2018
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
