Photography in the light of the GDPR
- Author: Niklas Drexler
- Last updated: 03.07.2023
- Category: Data Security
Photographs almost always fall under the category of personally identifiable data and are thus subject to the provisions of the GDPR. Is this problematic? Indeed.
As soon as a photo of a person is taken, personally identifiable data is generally involved. Individuals can be identified based on their personal characteristics, such as facial features and stature, if they are sufficiently recognizable. Additionally, digital images are often tagged with metadata, such as location and timestamps.
In data protection law, as outlined in Article 6(1) of the GDPR, the collection of personally identifiable data is prohibited unless there is a legal basis for doing so. In addition, the data subjects must be informed about the data processing, as stated in Articles 13 and 14 of the GDPR.
However, both of these requirements are almost impossible to fulfil in practice. To imagine that every person accidentally captured in a photograph of a famous landmark, such as the Brandenburg Gate, would have to be asked for permission and informed about the processing of the photograph is an unthinkable scenario.
Does this mean that there can be no more photographs of landmarks with other individuals or even groups of people visible?
Two central questions need to be addressed:
Can the GDPR be based on a legal basis other than consent?
Is there an exception to the obligation to inform the individuals concerned?
According to the Hamburg Commissioner, photographers can rely on Article 6(1)(f) of the GDPR, as their activity generally falls under the concept of art, which allows them to rely on legitimate interests.
With regard to the obligation to inform the individuals concerned, the Hamburg Commissioner argues for the applicability of Article 14 of the GDPR and the exception in paragraph 5. This means that individuals do not need to be informed if they cannot be identified by the photographer or if providing the information would involve a disproportionate amount of effort. Both scenarios are common.
So the good news for all the hobby photographers among us is that (for now) virtually nothing will change.
Interested? Read the full article here.
