Who isn't familiar with this: A post on one's own website or social media presence is quickly created. An additional photo guarantees greater attention. But what about respecting the right to one's own image for a depicted person? Some literally want to avoid this. You should not do this, as it generally leads to trouble.
When in Doubt, Do Not Use Photos Featuring Individuals
In 2018, a local party association in a Lower Saxon city published a post on its Facebook fan page about the construction of a traffic light system. The local association intended to highlight its involvement in the construction of the traffic light system. The Facebook post included a photo. In addition to the representative of the local association, a local married couple was also clearly recognizable in this photo. The photo had been taken in 2014 during the planning of the traffic light system's construction and was reproduced in an article on the website of the Hannoversche Allgemeine Zeitung.
The couple did not consent to the publication of the photo on the local association's Facebook fan page and contacted the supervisory authority. The supervisory authority issued a warning to the local association and imposed the costs of the administrative proceedings upon it. The local association ultimately appealed these administrative decisions without success.
May I Publish Photos Featuring Recognizable Individuals?
According to the Lüneburg Higher Administrative Court, the publication of the photo violated the legitimate interests of the depicted married couple.
Although the local association pursued a legitimate interest under Art. 6 para. 1 lit. f GDPR with its post and the published photo, it was not necessary to publish the photo in the manner presented. It would have been reasonable for the local association to anonymize the couple in the photo.
Is it permissible to secretly photograph individuals and subsequently publish these images?
Compounding the issue, the photograph from 2014 had already been taken without the couple's knowledge. Especially in cases of surreptitious recordings, affected individuals have the right to prevent the arbitrary dissemination of such images. Furthermore, the widespread membership of Facebook makes it exceedingly easy to further distribute a photo within this network. Consequently, affected individuals have virtually no recourse to prevent this data dissemination or to assert claims for its deletion.
Is the local association to be privileged as a political party?
The local association's argument for the permissibility of the publication under Art. 6 para. 1 lit. e GDPR proved futile. This provision grants a privilege for data processing when performed in the public interest. However, the Higher Administrative Court (OVG) determined that the local association's actions neither pertained to the governmental sphere nor could the publication of the photos on its Facebook fan page be classified as state action.
A remedy through the Art Copyright Act?
The local association contended that its post also served journalistic purposes, asserting that the publication of photos for such ends was permissible under Art. 85 para. 2 GDPR in conjunction with Sections 22 and 23 of the Art Copyright Act. This argument, however, did not succeed. Firstly, the court found that the local association did not pursue a journalistic purpose. Moreover, Recital 153 of the GDPR mandates exclusive journalistic purposes, which were not demonstrated in this instance.
What considerations are necessary when taking and intending to publish photographs?
Do not underestimate the significance of the right to one's own image. The proceedings before the Higher Administrative Court (OVG) Lüneburg incurred substantial costs for the local association. It is advisable to avoid repeating this error.
The following points should be considered:
- Obtain explicit consent from the individuals to be depicted. Ensure that this consent is documented in writing or, at a minimum, secured in the presence of witnesses. Furthermore, verify that the consent is sufficiently comprehensive in its scope and content.
- Should you be determined to publish a photograph, ensure that all individuals for whom you lack consent are rendered unidentifiable. However, a critical point: the unauthorized taking of a photograph alone constitutes a violation of data protection regulations.
- Exercise extreme caution when incorporating third-party photographs. Such actions may not only constitute a data protection violation but typically also lead to copyright infringement through the unauthorized use of external images.
Source: Higher Administrative Court (OVG) Lüneburg, Decision of January 19, 2021, File No. 11 LA 16/20
Previous instance: Administrative Court (VG) Hanover, Judgment of november 27, 2019, File No. 10 A 820/19
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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
