By decision of July 20, 2021, UF 74/21, the Higher Regional Court (OLG) Düsseldorf ruled that children's photos may only be published on social media with the consent of both parents.
Photo Publication on Facebook and Instagram
The children's parents live separately but are not legally divorced. The father's new partner posted photos of the daughters on Facebook and Instagram. The children were born in 2010 and live with their mother. However, the father maintains regular contact with the children.
Only the father consented to the dissemination of the photos
The father consented to his new partner disseminating the photos. The mother, however, only learned of the photo dissemination later. She demanded that the father's partner delete the photos and refrain from disseminating photos in the future. The mother requested the father to agree to the deletion of the photos and to prevent his partner from publishing them. The father, however, refused. The mother then filed a complaint with the District Court (Amtsgericht) Düsseldorf, which ruled that the mother held parental custody for both the out-of-court and judicial matters.
Publication of children's images is of significant importance according to Section 1628 of the German Civil Code (BGB)
The children's photos were published without authorization, constituting a violation of Section 22 of the Copyright Act on Works of Art (KunstUrhG). This was deemed a matter of significant importance according to Section 1628 of the German Civil Code (BGB). The father appealed this decision to the Higher Regional Court (OLG) Düsseldorf. The father justified his appeal by arguing that his partner could not be expected to wait until the children turn 18 before posting more photos on Instagram and Facebook, deeming this unrealistic. Furthermore, he claimed the mother's true objective was to wage a petty war against him using the children.
Publication of children's photos without the consent of both parents violates the child's welfare
The Higher Regional Court (OLG) Düsseldorf rejected the father's appeal as unfounded. The public sharing of images on Facebook and Instagram has a significant impact on the children's development. Disseminating photos on social media significantly infringes upon the children's privacy and personal rights. Specifically, the mother's consent to the publication of the photos was lacking, as required by Section 22 of the Copyright Act on Works of Art (KunstUrhG) and Art. 6 (1) Subpara. 1 lit. a) GDPR. The dissemination of the children's photos without the mother's consent was unlawful, and a violation of the child's welfare must therefore be assumed. Consequently, this constitutes a matter of significant importance under Section 1628 of the German Civil Code (BGB). The District Court (Amtsgericht) therefore rightly transferred parental custody for this matter to the mother.
The decision is legally binding.
Source: OLG Düsseldorf Decision of 20.7.2021 – 1UF 74/21, BeckRS 2021, 22062
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GoldbergUllrich Attorneys at Law 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
