photokina: 18.–21.05.2022 #photokina

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Law in the viewfinder


New data protection rules are also rocking the boat among photographers. Those who take photographs for private use are usually on the safe side. However, several legal grey areas arise.

99 new articles – an endless number of questions: the European General Data Protection Regulation (GDPR), which is now applicable following a two-year transition phase, is unsettling photographers. This is because, in the age of digital cameras and smartphones, the creation of a photo is now also a process of data processing targeted by the Regulation. Does one now have to acquire page-long consent forms of all those shown in a photo before each snapshot? Are photos of crowds even still allowed? Is it allowed to save photos in which strangers can be seen?

Although the legislative texts have been established for quite some time, there are still no binding statements in response to many questions. The reason? There are as of yet no precedents for the GDPR. Experts therefore presume that authorities, courts and lawyers will frequently have to deal with unique cases in coming years. Even now there are many assessments from jurists that could at least serve as guidelines for photographers.

Household privilege for the private photo album

Household privilege for the private photo album

Those who exclusively photograph for private purposes, however committed and enthusiastic they might be, should actually not be affected by the GDPR at all. This is because the body of rulings, according to the legislative text, is not targeted toward "natural persons carrying out personal or domestic activities". Jurists like to refer in this context to the "household privilege". Private persons may therefore continue to save their digital souvenirs of holidays or family celebrations in the photo folder of their hard drive. The problem: the boundary with commercial use can blur. Even those who proudly post good quality photos on Instagram, Facebook or other publicly accessible profiles can overstep them. Overzealous monitoring officials or lawyers quick to issue cease-and-desist letters could theoretically assess that as commercial advertisement for one's own photographic arts. Where the boundary lies precisely is not yet entirely clear.

More caution with crowds

The same applies to taking photographs of crowds or of people who are coincidentally visible in the background in holiday photos. Here the legislation is strict: one is already storing "personal data" of bystanders by clicking on the shutter release, because they are documented at a particular point in time at a particular location – doing this without permission is prohibited.

Those who strictly observe the paragraphs must therefore inform all those shown of the purpose of the photos and acquire their consent. This will hardly be possible in the football stadium or at the Acropolis. The Hamburg Commissioner for Data Protection reaches the conclusion in an assessment that the images are nonetheless okay for private purposes. The basic rights of those photographed are only seldom impacted, and the photographer can't be expected to make contact with and inform all stadium visitors. However, photographers should consider who is recognisable in the images. Children, for example, automatically enjoy a higher level of protection according to the GDPR.

Deletion made easier

There is still considerable insecurity even with regard to the publication of photos. The Federal Ministry of the Interior, Building and Community emphasises that those shown can contest the production and the publication of images at any time. This principle plays an even more important role in the GDPR.

The entirety of Article 17 deals with the right to deletion or "being forgotten": this means that consent to photos can thus also be withdrawn at any later point in time. With the exception of officially enacted recordings or press photos, images must then be deleted – ideally as quickly and as simply as possible. For hobby photographers it will therefore also become more important to know where and how image platforms store and distribute the recordings.

Helpful articles for further reading and listening:

7 tips for photographers – the law firm IPCL Rieck & Partner interprets the GDPR.

This is also worth having a listen to.

L egal orientation with regard to photography – Fotomagazin asks an attorney.

MEP Jan Philipp Albrecht on misunderstandings revolving around the GDPR – point 6 deals exclusively with photographers.