Family law meets data protection
In order to publish photos of children on social media or the internet in the digital age, both legal guardians must give their consent (OLG Düsseldorf decision of 20.07.2021, Ref: 1 UF 74/21). The OLG Düsseldorf confirms a decision of the OLG Oldenburg (decision of 24.05.2018, ref.: 13 W 10/18).
The decisions of the two higher regional courts were based on similar facts. The parents of the children concerned live separately. The new partner of one of the parents publishes photos of the children on the internet (social media, homepage) for advertising purposes. There was no consent from the other parent.
Decisions that have a significant impact on a child's life must be made jointly by the parents. This applies regardless of whether the parents live together (Sections 1629, 1627, 1628 BGB) or separately (Sections 1687, 1628 BGB).
The publication of children's photos on the Internet has considerable consequences for their lives. The WWW forgets nothing. Photos can hardly be removed from the Internet, according to the higher regional courts. The decision of the parents in favour of or against the publication of photos has considerable significance for the development and welfare of the children, according to the Düsseldorf Higher Regional Court. If, in the case of joint parental custody, the consent of a custodial parent is missing, the consent and therefore the legal basis for processing the photos is missing.
What is special about the Düsseldorf Higher Regional Court's decision?
The court dealt extensively with the protection of personality rights. In addition to family law regulations, data protection law (GDPR) and copyright law (KunstUrhG) regulations are examined.
In its decision, the Higher Regional Court of Düsseldorf clarifies that the "parental responsibility" referred to in the GDPR corresponds to "parental responsibility" under German law. If consent is required and the processing of the data is of significant importance for a child, the declaration of both legal guardians must be available. Only then is the consent effective. A concurring declaration by the legal guardians may be required for each consent.
Posting photos on social media (Facebook, Instagram, etc.) should therefore only take place with the unanimous consent of both legal guardians.
In addition, the court clarifies in a subordinate clause that the consent of the child concerned is irrelevant as long as the consent of the legal guardians has not been obtained. The decision of the Düsseldorf Higher Regional Court makes it clear that underage children cannot consent to processing against the will of their legal guardians. If the parents say "no" or if the parents' consent is otherwise ineffective, the minor's "yes" does not result in lawful processing.
It remains to be seen whether this statement will be confirmed by further decisions.
The court is not only referring to the GDPR. Consent under the Art Copyright Act must also be given by both custodians in the case of joint parental custody.
Result: When publishing photos of children on the internet, care must be taken to ensure that the consent of both legal guardians has been obtained. Any data processing that is of significant importance for the development of a child can only be consented to jointly by both legal guardians.
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