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Art. 7 GDPR Conditions for consent – photo ban

Handyverbot Datenschutz

Photo ban at school festivals – Taking photos at public events – What is still allowed after the entry into force of the GDPR?

Will we no longer have souvenir photos of our children from school festivals in the future? A high school graduation ceremony, a theater performance or a music event completely without souvenir photos? There are already recommendations, such as that of the state education authority in the Starnberg district, that parents of their offspring are banned from taking photos at school parties. What’s behind it: The new GDPR regulates the right to the image more precisely than before, which sometimes also causes a lot of uncertainty.

This is about personal rights and the right to one’s own image (which already existed before the GDPR came into force). The right to one’s own image counts as a personal right and even gives rise to a claim for damages in the event of infringement.

These passages can be found in laws:

For example, Article 2 (1) of the German Basic Law states: “Everyone has the right to the free development of his personality, insofar as he does not violate the rights of others and does not violate the constitutional order or the moral law.”

Further it says in § 22 KUG (art copyright law) “portraits may be distributed or publicly displayed only with the consent of the depicted(…)”.

Furthermore, there is also the copyright for images which, however, should protect the photographer in his professional practice.

What has changed through the DSGVO?

What has changed through the new GDPR is the fact that it is about the processing of data without the existing consent according to Art. 7 GDPR by the data subjects. Accordingly, the data subjects must expressly consent to data collection and processing. Pursuant to Article 7 (3) GDPR, the data subject also has the option to revoke his or her consent at any time. In addition, the storage of personal data entails compliance with certain deletion periods in accordance with Section 75 Federal Data Protection Act.

From another point of view, however, one can also ask the following legitimate question: How far does the legitimate interest go in such a case? If I photograph my child from the front and the other persons only from the side or from behind…is that legally okay?

Practical tips: How can I edit photos to delete personal data?

You can already reduce the stored data of the photograph on a smartphone to delete the (exif) properties such as GPS data and time of recording. This is done through the properties of a JPEG image by simply deleting time and GPS data before saving.

In these cases, we are left with the option to wait and see in which framework the GDPR and the right to one’s own image will be further specified in relation to image recordings.

At the end of the day, we will also have to be patient as far as school events are concerned until there are court-tested regulations.

Source:

http://www.sueddeutsche.de/muenchen/starnberg/datenschutz-fotoverbot-beim-schulfest-1.4024355

Art. 7 DSGVO at a glance

Conditions for consent

(1) If the processing is based on consent, the controller must be able to prove that the data subject has consented to the processing of his or her personal data.

(2) If the data subject’s consent is given by means of a written statement which also concerns other matters, the request for consent must be made in an understandable and easily accessible form in clear and simple language in such a way that it can be clearly distinguished from the other matters. Parts of the statement shall not be binding if they constitute a breach of this Regulation.

(3) The data subject shall have the right to withdraw consent at any time. The revocation of consent shall not affect the lawfulness of the processing carried out on the basis of the consent until the revocation. The data subject shall be informed of this before giving consent. The revocation of consent shall be as simple as the giving of consent.

(4) In assessing whether consent has been freely given, the greatest possible account must be taken of the fact whether, inter alia, the performance of a contract, including the provision of a service, is dependent on consent to the processing of personal data which are not necessary for the performance of the contract.

Source legislative text: EURLEX

Hint: This text has been translated by an AI (German > English). Slight errors may occure.