What is the law on Soakaway's pictures

Right to your own picture

This term does not come from the Federal Data Protection Act. Nevertheless, it has to do directly with the protection of personal data, because the image of a person enables personal reference - a person can be identified by personal characteristics on an image representing them (see comment on § 3 BDSG).

In general, an image is perceived much more strongly than, for example, the normal lettering of the name; Likewise, new facial recognition processes enable the unambiguous assignment of people using the biometric data of their images. The options for identifying a person via their image also require the definition of a protection area.

The right to one's own picture is derived directly from the general personality right of the Basic Law and is defined as the area of ​​protection according to § 22 sentence 1 KunstUrhG in conjunction with Article 1, Paragraph 1 and 2, Paragraph 1 of the Basic Law. The standards of the KunstUrhG take precedence over the regulations of the Federal Data Protection Act as area-specific regulations within the meaning of Section 1 (3) sentence 1 BDSG. However, the BDSG applies to areas in which the KunstUrhG is not applicable.

Images of people (that can be photos, drawings, graphics, in short everything that identifies the appearance of a person) may not be made available to the public without further ado.

Legal text KunstUrhG (excerpt)

(Law on Copyright in Fine Arts and Photography)

§ 22

Images may only be distributed or publicly displayed with the consent of the person depicted. In case of doubt, consent is deemed to have been given if the person depicted has received remuneration for allowing himself to be depicted. After the death of the person pictured, the consent of the person pictured's relatives is required for a period of 10 years. Relatives within the meaning of this law are the surviving spouse or life partner and the children of the person depicted and, if neither a spouse or life partner nor children are present, the parents of the person depicted.

§ 23

(1) Without the consent required under Section 22, the following may be disseminated and displayed:

  1. Portraits from the realm of contemporary history;
  2. Pictures in which the people appear only as accessories next to a landscape or other location;
  3. Pictures of meetings, elevators and similar events in which the persons depicted have taken part;
  4. Portraits that are not made to order, provided that the dissemination or exhibition serves a greater interest in art.

(2) The authorization does not, however, extend to dissemination and display that violates a legitimate interest of the person depicted or, if he is deceased, of his relatives.

§ 33

(1) Anyone who, contrary to Sections 22, 23, disseminates or publicly displays a portrait is punished with imprisonment for up to one year or with a fine.

(2) The offense will only be prosecuted upon request.

As you can see, the formulations in § 23 leave plenty of room for interpretation and discretion.

  • For example, when am I just "accessories"?
  • When does one speak of an "assembly"?
  • And where does the "legitimate interest" of a person depicted end?
  • What conclusions does a company have to draw from the legal situation in the media age, for example when considering the publication of employee photos in advertising brochures, in company newspapers or on the Internet?

The safe way is the written consent of the employees or other affected persons to publish their pictures.

The question of whether the employee can refuse to do so cannot be answered with YES or NO, but will depend on the professional activity: A model will not be able to take up his job if she refuses to publish pictures. For an employee who works in the registry, for example, the current case law sees it differently.

Definitions of current case law

As Portrait becomes "any recognizable representation of the external appearance of a person" viewed. In this case, the possible identification by stature, posture, clothing, etc. is sufficient for the recognizability of a certain person. - The sole determination of the person through clearly recognizable facial features does not have to be a mandatory requirement.

A distribution provides the analog transmission ("physical objects") or digitized transmission.

Show publicly is the visualization of the portrait for an unlimited group of people - "for a not clearly delimited and not personally connected to each other or to an organizer majority of people". (Section 15 (3) UrhG is also used to determine the "public")

(see also: LAG Rheinland-Pfalz, judgment of 30.11.2012 - 6 Sa 271/12; OLG Munich, judgment of 26.6.2007 - 18 U 2067/07)

When can pictures of people be published?

  1. consent
    The consent of the person depicted must relate to the intended use. Consent does not exist, for example, if a journalist persuades a restaurateur with the promise to publish a positive article about his restaurant, but then writes a nasty slap about the restaurant.
  2. Honor the depicted
    Consent can generally also be assumed if the person depicted receives a fee for this (example: photo models). Here, too, it is important that the publication moves within the framework of the agreements made for which the remuneration is paid.
  3. Absolute figures in contemporary history
    These are outstanding personalities who, due to their position, are constantly in the public eye. Examples of this are politicians, stars from the fields of sport, show business, film, etc. However, there are also limits to the right to publish here. Misuse of such photos for advertising purposes is not covered by the Art Copyright Act. The public interest in information also ends in the protected personal area of ​​life of those affected.
  4. Relative persons in contemporary history
    Sometimes people come into the public eye in connection with an outstanding event. For example, in a spectacular rescue operation. A depiction of these people is only permitted in a temporal and factual context with the respective event. In the event of later use after a long time, the consent of the persons must be obtained again.
  5. People as "accessories" to a landscape or cityscape
    Here the landscape or cityscape is in the foreground, the image is not primarily shaped by a person.
  6. Greater interest in art
  7. Public gatherings and elevators
    This involves traditional festivals (rifle parade, carnival, religious processions, etc.), political events (e.g. May rallies, demonstrations) and cultural events in public (street festival). The person depicted must be recognizable as a participant in the event and assigned to him. Individual portraits that were only made on the occasion of the meeting are not included.

What about publications on the internet?

The exceptions mentioned in Section 23, Paragraph 1, Items 1 to 4 do not automatically justify the publication of images on the Internet, as the associated impairment of the legitimate interests of the person depicted is more pronounced than with publication in conventional media. Due to the worldwide distribution on the web and the possibility of downloading images from there at any time, changing them and misusing them in a variety of ways, there is no comparison with a publication in print media. It is therefore advisable to obtain the consent of the person concerned for the publication of photos on the Internet that show identifiable persons.

What about publications on the intranet?

The publication of employee photos on the intranet is only permitted with consent and express reference to the voluntary nature.

If employee photos are to be made available for the intranet, this requires processing of employee data in accordance with Section 32 BDSG. However, the company-internal publication of the employee photos is not required for the purposes of the employment relationship (principle of proportionality). The necessity according to § 28 Paragraph 1 Clause 1 No. 2 BDSG to safeguard a legitimate interest of the company (e.g. strengthening the feeling of togetherness among employees) is also questionable.

On the other hand, it can be assumed that, due to the very personal characteristics of a photo, the legitimate interest of employees outweighs them if their photos are to be communicated or made visible to a group of people largely unknown to them. A permissible legal regulation within the meaning of Section 4 (1) BDSG is therefore not given and only the consent of the employees can be considered as a justification for the publication of the images. However, the effectiveness of consent within employment relationships is viewed as problematic, as the employee often lacks the necessary free decision (Section 4a, Paragraph 1, Clause 1). Peer pressure, caused by the intended publication of pictures by all employees, can also play a role here. (For more information on effective consent, see also the comment on Section 4a BDSG.)

Employees can be made voluntary by offering them the "opportunity" to publish their photos on the intranet, together with an express reference to voluntary use and no disadvantage in the event of non-use. In this case, it can be assumed that the consent to the publication of the images there is legally effective and implicitly given when it was posted on the intranet, in accordance with § 4a BDSG and § 22 KunstUrhG[1]

Criminal liability

Anyone who publishes pictures of other people without their permission and without the existence of one of the exceptions is liable to prosecution. The act is an offense that is punishable by a fine or imprisonment. However, prosecution only takes place at the request of the injured party (claim offense).

Web links

Individual evidence

This text was taken from the BfDI's data protection wiki. Edits made before April 16, 2016 are licensed under the Creative Commons Attribution 3.0 Germany license.