Before and after the introduction of the DSGVO on 25.05.2018, there was always the question of how the new legal situation around the photographing and publishing of portraits actually behaves. Insecurity arose, especially among advertisers, influencers, bloggers and photographers. The Higher Regional Court (OLG) in Cologne dealt with a very interesting question in June and decided that the Art Copyright Act (KUG) will continue to apply to journalistic reporting (file No. 15 W 27/18 dated 18.06.2018).
What does this decision mean for non-journalistic purposes? Does the KUG weigh “heavier” than the DSGVO and does it continue to apply there?
The problem around the picture
Background of the decision was the publication of recordings in the context of a television report. Before the introduction of the DSGVO, the legal situation in this case was clear: The Art Copyright Act (KUG) applies.
Because the KUG is a special data protection law, which regulates the publication of portraits (photos, films, paintings) of natural persons. Data protection law, because images of natural persons, when stored and published, are personal data, which are protected in principle by data protection law.
With the coming into force of the GDPR, however, the question arises as to whether the special regulations of the KUG continue to apply before or alongside the GDPR. The GDPR is an EU regulation that fundamentally displaces all previous data protection laws. Clear consequence would have to be: The KUG is no longer applicable. Now the DSGVO applies. So why is there this discussion?
New is not always better – the advantages of the KUG
The requirements of the new DSGVO are very demanding. As before, the principle of “prohibition with reservation of permission” applies. This states that the processing of data is prohibited, unless there is a consent of the person concerned or the law allows it. In addition, those responsible take numerous information and documentation duties.
For photographers taking pictures at a wedding or photographing a meeting, it would be a considerable effort or impossible for everyone to obtain their consent and to duly document this.
The KUG, on the other hand, also contains the principle of “prohibition with reservation of permission”, but the requirements for obtaining consent are much lower. For example, posturing for a photo may already be considered as implied consent if the person in question knows that the photograph will be published. A proven construction that the DSGVO does not know. In addition, the KUG in many cases allows the publication of portraits without consent.
The application of the KUG would be in the result more advantageous and also easier. This was also recognized by the OLG Cologne and taken into account in its decision.
Cologne Higher Regional Court: KUG applicable for journalistic reporting
How does the court come to this opinion?
The GDPR contains some so-called “opening clauses”, which allow the EU member states to make their own regulations, which deviate from the GDPR, on certain topics or to continue to apply old regulations. Especially if there is a risk that the fundamental requirements of the GDPR could undermine important fundamental rights of EU citizens (for example freedom of expression and communication).
One such clause is Article 85 of the GDPR, which states that each country can make its own rules to protect freedom of expression and communication. However, these should be such as to provide a fair balance between data protection and freedom of expression and communication. That is exactly what the KUG does and has always done. Therefore, it should continue to be applicable for journalistic reporting.
But what about the use of pictures and videos in marketing, in blogs, on social networks? Can these areas also benefit from the decision? Unfortunately, the court makes no comments, but the prospects are good.
Application of the KUG also possible for non-journalistic purposes?
Whether the KUG can also be used for non-journalistic purposes will ultimately be decided by only one court. Until a judgment is given, the provisions of the GDPR should be followed.
However, before investing too much time in obtaining consent, it should be checked whether publication may be allowed without consent. There are also provisions in the GDPR that permit the processing of data without consent, especially if there is a legitimate interest (Article 6 (1) (f) GDPR). Here, too, a fair balance must be found between the fundamental rights of the opposing parties.
To weigh whether there is a legitimate interest, photographers, influencers, bloggers and PR departments can use the case law of the KUG.
Outlook: Good reasons for the comprehensive application of the KUG
Although the Cologne Higher Regional Court did not provide any information regarding the use of the KUG for non-journalistic purposes (eg advertising), this does not mean that the discussion ends. One must not forget: Also advertising is protected by the opinion and communication freedom!
The KUG has historically been widely used in litigation between advertisers and imaged persons (e.g., “Sixt” decision). This resulted in a very extensive case law, not only in the highest German courts (BGH and BVerfG), but also before the European Court of Justice (ECJ) and even the European Court of Human Rights (ECtHR). It was mainly about the fair balance of the rights of the depicted and the reproducing. Just as the DSGVO demands as well.
This is another advantage of the KUG. The more and more detailed case law over the years has given rise to extensive legal certainty. To DSGVO there are no judgments. The result: legal uncertainty. Nobody really knows what is right and what is not.
For this reason alone, it can be expected that the KUG will continue to apply for non-journalistic purposes in the future.
Away from the KUG: the production of portraits
Other than that publication of portraits is theirs production not covered by the KUG. Here exclusively applies the DSGVO. But also in the production of portraits should also be checked before a time-consuming and power-consuming hunt for consent, whether the making of the portraits is legally permitted.
First, this is the case when a contract is fulfilled, e.g. at order photography. If other persons than the client are photographed, this could be based on their legitimate interest. A consent would be unnecessary if the other persons are informed about the recordings and not contradict.
Note: Even if a permission can be found on which the consent-free recording of portraits is based, there are certain information requirements. A clear indication of data processing, contact options and the nature and purpose of further processing (for example, for websites or social media) is recommended.
To the author: Kathrin Schürmann is a lawyer, privacy expert and partner at Schürmann Rosenthal Dreyer. In addition to copyright and media law, data protection and competition law, she specializes in marketing, in particular competition and data protection law. Schürmann is also co-founder of lawpilots, an e-learning provider for the legal challenges of digitization (focus on data protection and IT security).