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Posting child photos without the consent of the other parent
The publication of photos of their own child by the parents on open or closed social media platforms can become a matter of dispute if the child is a minor and the publication takes place without the consent of both parents. We want to give parents an overview of what they when posting children's photos should pay attention to and which ones legal options exist when photos of the children were posted without the consent of both parents.
Table of Contents
NOTE: You can also read children's photos on Instagram, Facebook, TikTok & Co about data processing by daycare centers.
Overview of what parents who live together or who are separated should consider when publishing photos of children
- Publication of photos of children: Children have a right to their own picture
- The publication of photos of children of minors is only permitted with the consent of the parents
- the minor's additional consent may be required
- Photos represent personal data within the meaning of the GDPR
- the budgetary privilege of 2 para. 2 lit. c) GDPR only applies in personal and family surroundings - publications in social networks generally go beyond this
- In the case of joint custody, the consent of both parents in accordance with 6 para. 1 sentence 1 lit.a) GDPR is required for the processing to take place lawfully
- sole custody requires the consent of the custodial holder
- If the child has advanced knowledge, it may be necessary to obtain their consent as well
- a legitimate interest within the meaning of 6 para. 1 sentence 1 lit.f) GDPR for the publication of children's pictures will normally not be given
- Disputes between family members about the right to one's own picture are not family disputes within the meaning of 266 FamFG
- Underage children require a supplementary carer to assert claims under civil law against a parent who has the right to custody
- the decision to take action against the unauthorized publication of photos of children requires the mutual consent of both custodial parents, on the basis of which the sole action of one parent is not permitted
- In order to assert any claims in court, underage children must be represented by a supplementary carer
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Explanation of the current legal provisions
Portraits of persons fall under the scope of both the KUG (Art Copyright Act) and the GDPR (General Data Protection Regulation). Within the framework of Art. 85 GDPR, the KUG can be maintained in a journalistic, scientific and artistic context. But when you publish photos of children, you are mostly in the personal or family area. It is therefore questionable what has changed due to the entry into force of the GDPR.
Previous legal framework
Before the GDPR came into force, the use of photos was primarily based on §§ 22, 23 KUG. Sections 22 f. KUG regulate the publication of images in such a way that consent is generally required, unless the requirements of the exceptions in accordance with Section 23 KUG are met.
Overlapping of the KUG and the GDPR
The right to one's own image in the KUG is an expression of the constitutionally protected general personality right from Article 2, Paragraph 1 in conjunction with Article 1, Paragraph 1 of the Basic Law. Only the person depicted should have the power to dispose of his own picture, the so-called right of self-determination. According to Art. 1 Paragraph 2 in conjunction with Recital 1 GDPR, the GDPR has also committed itself to the fundamental protection of personal data in accordance with Art. 8 Paragraph 1 GRCh and thus the right to self-determination under data protection law.
Images represent personal data within the meaning of the GDPR, as the persons depicted can be identified in accordance with Art. 4 No. 1 GDPR. In addition, Art. 4 No. 14 GDPR speaks of “facial images” as personal biometric data. Unlike the KUG, the GDPR covers the entire process, from the creation to the distribution of images. An overlap with the KUG arises when photos with a recognizable representation of people are published on the Internet. However, the GDPR has general applicability and is binding for all member states in all its parts and applies directly, so that it generally overlaps the requirements of the KUG in overlapping constellations.
Budget privilege, Art. 2 Para. 2 lit. c) GDPR
The GDPR contains a so-called family or household privilege according to Art. 2 Para. 2 lit. c) GDPR, according to which processing of personal data by a natural person for the exercise of exclusively personal or family activities and without reference to a professional or economic one Activities that are outside the material scope of the GDPR. The KUG continues to apply here without restriction. However, the exception must be interpreted restrictively. It only works if the circle of recipients is limited to the personal or family environment. It is undisputed that photos and films made on vacation, on which people can be recognized, fall into the open space. It is assessed differently, however, when these photos are uploaded to Facebook, as they are then made available to a large group of recipients, of whom in principle not all can be assigned to the personal or family circle.
Example: The WhatsApp profile picture with the children
Are you still in the personal or family area, so that household privilege would intervene if you set a profile picture on WhatsApp on which your own children can also be recognized?
- The privilege does not apply to the publication of information to an indefinite group of people. I.e. you should think about who can view your profile picture on WhatsApp.
- Are your contacts only private or also business ones?
- A limitation to individual groups or contacts, so that only these the profile picture is displayed, is not sufficient, since the access can be increased by functions such as "Share", "Copy" or the creation of "Screenshots".
- It should not be forgotten that by using WhatsApp you also agree to the terms and conditions of the service. And it says that WhatsApp, just like Facebook, can use the photos it uses free of charge and, for example, pass them on for advertising purposes.
- If personal data is made known to an indefinite number of people, the range of exclusively personal or family activities is always exceeded
- If you want to be on the safe side, you should refrain from using photos as profile picture on WhatsApp that show children.
Example: Sending photos of children in private messages on WhatsApp
What about when you send photos of your children to your relatives or friends in private chats on WhatsApp?
- As long as it is used in such a way that only a limited group of people gain knowledge of information, such as in the context of individual or group messages, the exception is relevant.
- Publicly visible data collections are always subject to the provisions of the GDPR and are not excluded from Paragraph 2 lit. The same applies if a private collection of data that is not publicly visible is stored electronically and the service provider used for the storage has been granted rights to use this data via its contractual conditions. This is the case with WhatsApp.
- As with the profile picture, there is also the risk that a privately sent picture will be shared or copied.
- It is therefore generally not advisable to send photos of children via services such as WhatsApp.
Consent of legal representatives and the child
So the question arises as to what a custodial parent needs to consider when publishing photos of children. Basically, it remains the case that a minor child has only limited legal capacity until they reach the age of 18 (Section 106 BGB) and therefore the consent of their legal representatives is required for the publication of children's pictures. The legal representation of the child is generally exercised jointly by the parents in accordance with §§ 1626, 1629 BGB, which is why it is necessary that both parents give their consent.
Whether or not the child's consent must also be obtained depends on the child's ability to understand. Consent is required if the child can reasonably foresee the consequences of their decision to consent to the processing of their data. It is assumed that the ability to understand increases with age.
Consent according to GDPR
It should therefore be noted that the publication of a photo represents processing of personal data within the meaning of the GDPR and, in the case of joint custody, the consent of the other parent and, if applicable, the child must be obtained. The consent to the processing of personal data is based on Art. 6 Para. 1 S. 1 lit. a) GDPR. In order for the processing to be lawful, the consent must meet the following requirements:
The legitimate interest
The publication of a child's photo can also be lawful within the meaning of the GDPR if the processing is necessary in accordance with Art. 6 Para. 1 S. 1 lit.f) GDPR to safeguard legitimate interests. However, this only applies if the interests or fundamental rights and freedoms of the data subject, which require the protection of personal data, do not prevail, which is particularly the case when it comes to a child. Basically, the processing interests of the person who publishes the photo must be weighed up against the interests of the person concerned who are against the processing and can be seen in the photo. If the person concerned is a child, particular care must be taken, and the publisher's compulsion to justify is all the greater. In principle, there will therefore be no legitimate interest in posting pictures of a child on the Internet, for example.
Consent as a Risk
Consent within the meaning of Article 7 GDPR generally represents a risk. In contrast to consent under the KUG, it can be freely revoked at any time in accordance with Article 7 Paragraph 3 GDPR. Withdrawing your consent does not affect the legality of the processing carried out on the basis of your consent until the withdrawal, but from then on the processing lacks its legal basis.
Example: Posting photos on Facebook
There are a number of issues that arise when posting photos of your children on Facebook that need to be considered.
- When you post a photo on Facebook, you are allowing Facebook to use the photo as you have agreed to Facebook's terms and conditions
- If a photo is published on Facebook, regardless of the respective privacy settings, it will reach a hardly manageable group of recipients. Colleagues, neighbors, friends and family can view, share and save the uploaded photo on a computer without you noticing.
- The problems already mentioned in the examples above can also be extended to Facebook.
- You should therefore always refrain from uploading photos that show the faces of your children or other people without the necessary consent.
NOTE: You can also find an exemplary formulation of consent in our article Children's photos on Instagram, Facebook, TikTok & Co.
Enforcement of the right to cease and desist if photos of children were published without consent
If photos of children were published by one parent with custody without first obtaining the consent of the other parent with custody or without being able to prove a legitimate interest in the publication, the question arises as to how one can take legal action against this unlawful processing.
The Karlsruhe Higher Regional Court has already issued a ruling on July 8, 2016, Az. 18 WF 183/15. The basis for the assertion of injunctive relief claims due to a violation of the right to one's own image are §§ 823 Paragraph 1, 1004 BGB and § 823 Paragraph 2, 1004 BGB in conjunction with §§ 22, 23 KUG. For claims from these regulations, a family court jurisdiction could at best result from § 266 FamFG, provided that it concerns another family matter within the meaning of this regulation. However, when portraits are published, the asserted claim does not stem from marriage or the parent-child relationship, nor is it related to the separation or divorce of the parties involved.
The matter therefore falls under the exclusion status of Section 266 (1) No. 1 Hs. 2 FamFG in conjunction with Section 348 (1) sentence 2 No. 2a ZPO and thus falls within the jurisdiction of the civil courts. The provision of Section 348, Paragraph 1, Sentence 2, No. 2a ZPO includes disputes about legal and contractual claims arising from publications through printed matter, image and sound carriers of all kinds, in particular in the press, radio, film and television as well as in other media, such as the Internet. As a result, such a request is not a family matter, on the basis of which the jurisdiction of the family court according to § 23b GVG does not exist.
“In order to assert any claims in court, the underage children must be represented by a supplementary carer. Sole representation of the children by the applicant is ruled out due to the joint custody of the parents. It also does not result from §§ 1629 Paragraph 2 Clause 1, 1795 Paragraph 2, 181 BGB. According to this, the respondent who is entitled to custody is excluded from representing the children by law, because a guardian cannot bring proceedings against himself on behalf of his or her ward (BeckOK / Schäfer, BGB, as of May 1, 2016, § 181 marginal number 16). However, this does not strengthen the applicant's power of representation to the sole right of representation. Rather, the applicant is also prevented from being represented. For general representation, the principle applies that if one of two general representatives is legally prevented, the other - due to the limitation of his power of representation to the general representation - cannot act effectively (RGZ 103, 417 ff; 116, 116, 117; Staudinger / Peschel-Gutzeit ( 2015) BGB § 1629, Rn. 315; Palandt / Götz, BGB, 75th Edition 2016, § 1629 Rn. 14). "
Overview of supplementary custody
- Supplementary custody is the representation of the parent or guardian who is prevented from exercising custody by a court-appointed carer.
- If the parents, one parent or the guardian of a minor are prevented from exercising custody for factual or legal reasons, a supplementary carer must be appointed in accordance with Section 1629, Paragraph 2, Section 1909 of the German Civil Code.
- According to §§ 1909 ff. BGB, the family court is responsible for the supplementary custody.
- Supplementary custody can be exercised by the youth welfare office or an individual.
- In general, the applicable regulations for guardianship also apply to the supplementary custodian and the appointment of the supplementary custodian takes place in accordance with 1779 BGB.
- In accordance with 1779 para. 2 sentence 1 BGB, a neutral person should be selected who, according to his or her personal circumstances, financial situation and other circumstances, appears suitable to lead a supplementary custody. The appointment document names the area of responsibility of the supplementary caregiver.
- When choosing from several suitable persons, the presumed will of the parents, the personal ties of the ward, the relationship or sisterhood with the ward and the ward's religious beliefs must be taken into account.
In a more recent decision, the OLG Oldenburg dated May 24, 2018 (Az. 13 W 10/18) determined that the publication of photos of a child of separated parents with joint custody on a website serving commercial purposes is a matter of considerable importance in the According to § 1687 Abs. 1 S. 1 BGB act. The publication of photos on a website and consequently the unauthorized publication of photos is a matter the regulation of which is of considerable importance for the child. Matters of considerable importance within the meaning of Section 1687, Paragraph 1, Sentence 1 of the German Civil Code are usually those that do not occur frequently and therefore generally have or could have significant effects on the development of the child and their consequences only with some effort are eliminated.
"If parents, to whom parental custody is jointly entitled, live not only temporarily separated, their mutual consent is required for decisions on matters that are of considerable importance for the child."
The court found that, in principle, both parents should have consented to the publication of their child's pictures. Since this is a matter of parental custody, the regulation of which is of considerable importance for the child, the applicant is not entitled to take legal action against the unauthorized publication of photos of his daughter on the Internet without a family court transfer of the relevant authority.
The article was written by lawyer and data protection expert Peter Hense together with our research assistant at Spirit Legal, Celin Fischer.
Images used: Unsplash.com
Spirit Legal is a law firm specializing in business, media and technology law. Every two weeks we present current topics that are relevant for your company. In the newsletter you will also receive a summary of our contributions and activities.
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