Are you allowed to take photos of children without further ado?? And is a publication on the Internet allowed?
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Part 1 – Right to one’s own image?
Part 2 – Photos of the children on the net
A snapshot is quickly taken with the smartphone. The children in the kindergarten are playing together and lunch is about to be served. However, you are not allowed to upload your snapshot to Facebook or publish it on the kindergarten’s website just like that.
The right to one’s own image applies to children – just as it does to adults. This law, also known as the law of likeness, is part of the general right of privacy. In principle, each person may decide for themselves whether a picture of them is published or not. Since the right to one’s own image belongs to the right of personality, it is an absolute, comprehensive right. It serves to protect the privacy of each person. In addition, each individual should be able to determine how he or she is perceived in public and as a social member of a society. Therefore, the legislator also speaks of public, social, private and intimate sphere.
Consent is required before publication
When may a child’s photo be published? According to paragraphs 22 and 23 of the German Art Copyright Act (KunstUrhG), every person – big or small – is protected from publication. Whether the publication takes place on the Internet, in a book, a magazine or in the newspaper is irrelevant. Important to know: The KunstUrhG applies not only during lifetime, but also after death.
Can parents give consent to the publication of photos of their children?
In principle, yes, although a certain differentiation is required. For children up to the age of seven, it is the parents or guardians alone who decide whether a photo can be published. It is therefore not possible to put the photo of a minor on the net without being asked.
Between the ages of eight and 17, the so-called dual responsibility applies: now both the parents and the children or young people must be asked whether they agree to any publication. Lawyers call this "attained capacity of consent". Legally not completely clarified is, according to the words of John Weitzmann (iRights).info), when this "insightfulness" can is achieved. Elementary school children, for example, usually do not yet understand what the disclosure of data means.
In other words, the legislator leaves a certain amount of leeway here, but assumes that from the age of 14, children are entitled to be photographed or filmed. the "attained capacity of understanding" is given. However, precisely because the legislator remains vague at this point, the parents of minors should be asked for their consent to publication. For example, if photos of the last band concert or the summer trip to the lake are posted on the school’s website.
In the wake of the Edathy affair, Section 201a "Violation of the most personal sphere of life through image recordings" was amended in 2014 (StGB) additionally tightened. Since then, the "production or transmission of a picture that shows the helplessness of another person" and the "transmission of a picture that shows the helplessness of another person" have also been prohibited as well as the "transmission of a picture of another person which is likely to cause considerable damage to the reputation of the person depicted", punishable.
Photos in the open-air swimming pool: Allowed?
In principle, at least, it is not forbidden to take photos in the outdoor swimming pool. However, as is often the case, the individual case is also decisive here. In fact, every outdoor pool has its own rules for taking pictures. In some places, for example, panorama pictures and photos of acquaintances are allowed, but those of children are completely forbidden, since the smallest ones often only splash around in skimpy or no bathing clothes at all.
Parents should therefore ask the lifeguard beforehand whether they are allowed to photograph or film their offspring and then make sure that no other children are in the picture. Unfortunately, you have little control over where snapshots end up at the end of the day. If you don’t want to be photographed in swimwear and possibly end up in social networks later, there’s really only one thing you can do: Stay at home.
In most pools, the staff is required to keep an eye on amateur photographers and, if in doubt, to point out that photography is only permitted to a limited extent or not at all.
Numerous municipalities have tightened their statutes for outdoor pools in recent years. If you are caught taking pictures you have to hand in your cell phone or leave the bathroom. Some baths also hand out stickers to bathers who refuse to do without their equipment. With this they have to tape the camera lenses on their smartphones as long as they are in the open air swimming pool.
Big events: What rights does the photographer have?
Taking, designing and exploiting photographs are part of the so-called photographic right. The photo right regulates the relationship between provider and exploiter. At the same time it deals with the privacy rights of those who are photographed.
There are factors that make it easier to publish a picture in everyday life. In certain cases it is even possible to publish photos of children and young people without the consent of the parents or the persons depicted. example: a bigger crowd of people. At street and school parties it is of course allowed to take pictures without asking every single person beforehand if they want to be on a picture. In this case, however, it remains important that the person pictured is exclusively part of a larger crowd. So if you are present at a concert or a demonstration, you must expect to be photographed.