Who doesn't know this: A post on one's own website or social media presence is quickly created. An additional photo guarantees higher attention. Do you have to respect the right to your own image of the person depicted? Some people literally want to save themselves the trouble. You should not do this, because it usually brings trouble with it.
If in doubt, do not use photos with people
In 2018, a local association of a party in a town in Lower Saxony published a post on its Facebook fan page about the construction of a traffic light system. The local association wanted to emphasise its involvement in the construction of the traffic lights. The Facebook post contained, among other things, a photo. In addition to the representative of the local association, a local couple (clearly recognisable) could also be seen in the photo. The photo was taken during the planning of the construction of the traffic lights in 2014 and was reproduced in an article on the website of the Hannoversche Allgemeine Zeitung.
The couple did not agree with the publication of the photo on the Facebook fan page of the local association and called in the supervisory authority. The supervisory authority warned the local association and ordered it to pay the costs of the official proceedings. In the end, the local association appealed against these official notices in vain.
May I publish photos with recognisable people?
According to the OVG Lüneburg, the publication of the photo violated the legitimate interests of the couple depicted.
With its contribution and the published photo, the local association was pursuing a legitimate interest according to Art. 6 para. 1 lit. f DSGVO. However, it was not necessary to publish the photo in the way it was published. It would have been reasonable for the local association to make the spouses in the photo unrecognisable.
May I secretly photograph people and publish the photos?
The situation was aggravated by the fact that the photo from 2014 had already been taken without the knowledge of the couple. Particularly in the case of secret recording, those affected have the right that such a recording is not distributed arbitrarily. There is also the problem that Facebook has many members and it is very easy to distribute a photo within this network. Those affected have virtually no chance to prevent this dissemination of data or to assert claims for deletion.
Privileging of the local association as a party?
The local association argued in vain that the publication was permissible under Article 6 (1) (e) of the GDPR. This norm privileges data processing in the performance of a task in the public interest. The OVG found that the actions of the local association did not affect the sphere of the state, nor could the publication of the photos on the Facebook fan page be qualified as state action.
Salvation through the Art Copyright Act?
The local association argued that it was also pursuing journalistic purposes with the contribution and that the publication of photos for journalistic purposes was permissible under Art. 85 para. 2 DSGVO in conjunction with. §§ Sections 22 and 23 of the German Art Copyright Act (Kunsturhebergesetz). The local association did not succeed with this argument. On the one hand, the court was of the opinion that the local association did not pursue a journalistic purpose. Furthermore, recital 153 of the GDPR required exclusive journalistic purposes, which were not present here.
What do you have to think about when you want to take and publish photos?
Do not take the issue of the right to one's own image lightly. The proceedings before the OVG Lüneburg cost the local association dearly. Do not make the same mistake.
You should consider the following:
- Obtain the consent of the persons to be photographed. Get the consent in writing or at least in the presence of witnesses. Make sure that the content of the consent is sufficient.
- If you absolutely want to publish a photo, make all persons unrecognisable whose consent you do not have. But beware: even the unauthorised taking of a photo is already contrary to data protection.
- Be careful when "adopting" other people's photos. You may not only be committing a data protection violation, but usually also a copyright violation by using someone else's photo.
Source: OVG Lüneburg, decision dated 19.01.2021, ref. no. 11 LA 16/20
Previous instance: VG Hannover, judgement of 27.11.2019, ref. no. 10 A 820/19
We are happy to advise you in the entire area of IT/IP and data protection law.
GoldbergUllrich Lawyers 2021
Julius Oberste-Dommes LL.M. (Information Law)
Specialist lawyer for information technology law