Nowadays, powerful smartphones cameras allow unnoticed snapshots. In kindergarten, on a school trip or on excursions, there is a risk that someone will secretly or unintentionally photograph your child. It then takes just a few clicks to distribute the recording via Messenger or social media. In such a case, there is always an infringement of the rights to one's own image.
The rights to one's own image, also in this case the rights of the child, are a core component of personal rights. Below you will find information about the legal regulations.
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Children's rights to your own photo - and what you need to know
Art copyright law regulates rights to one's own image
People allowed as accessories
Secret photos in the highly personal area of life are prohibited
It is forbidden to take pictures of half-naked children
Take action against prohibited photographs
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Children's rights to your own photo - and what you need to know
From a legal point of view, there are basically two different types of prohibitions with regard to secret image and video recordings:
the prohibition of recordings,
the ban on distributing recordings without the consent of the person depicted.
It depends on the location and the situation which of the two regulations applies in the specific case.
Art copyright law regulates rights to one's own image
Paragraph 22 of the Art Copyright Act serves as the basis for the rights to one's own photo: "Images may only be distributed and publicly displayed with the consent of the person depicted."
This excludes the publication of recordings without the consent of the person depicted. If friends or strangers upload photos of your children online without permission, this is a criminal offense. In addition to photographs, the concept of portrait includes videos and paintings. According to the law, the person pictured has the right to his own picture up to ten years after his death.
People allowed as accessories
The cited paragraph does not apply to private photographs that depict people as accessories. This exception is important if you are in a busy place with your children. For example, when taking pictures of sights, passers-by are inevitably in the picture.
If the purpose is to photograph the building, the other people are accessories. You are allowed to take photos of your children that show other people as accessories. The subsequent publication, for example on social networks, is considered problematic. It is advisable to make the people unrecognizable to be on the safe side.
Large events are another exception. The public interest in information allows reporting with photographs.
Since individual persons are not in focus, no separate consent is required. Private events do not belong to the scope of this regulation.
Secret photos in the highly personal area of life are prohibited
While the previous statements concern the publication of secret photos, the legislature already forbids taking them in some situations. The associated regulations are in Section 201a of the Criminal Code. If your children are in their highly personal area of life, the legislature generally forbids taking photographs or videos of them. This includes:
your own apartment,
Accommodation such as hotel rooms,
Toilets,
Locker rooms.
In addition, the Criminal Code prohibits photos and videos that show the helplessness of other people. This regulation applies, for example, to injuries in an accident. People under the influence of alcohol or drugs are also considered helpless.
It is forbidden to take pictures of half-naked children
The third paragraph in Paragraph 201a is particularly relevant for your children. This deals explicitly with recordings that show the nudity of people under the age of 18. In this case, the law prohibits the production and the paid transfer to third parties.
Violations can result in a fine or imprisonment of up to two years. In addition, the legislature prohibits the transfer of prohibited recordings to third parties. This also applies to photos that could damage the reputation of the people shown. The latter point becomes important when your children are older and go out in the evening. Embarrassing party photos fall under the criminal offense.
In summary, other people are initially entitled to take private recordings of your children. Only the public distribution without consent is prohibited by the Art Copyright Act. If you notice that someone is secretly taking a photo of you, contradict this process. There is only an explicit ban on clandestine recordings in the event of a violation of privacy.
No one is allowed to take photos of your children in the apartment, on the toilet or in changing rooms. Recordings showing your children naked or lightly dressed are also prohibited. The prohibition also applies to the passing on of corresponding photographs to third parties. By focusing on third parties, the Criminal Code defines a narrower framework compared to the Art Copyright Act, which is aimed at publication.
Take action against prohibited photographs
Violations of the right to your own picture constitute a criminal offense. You are free to take legal action against prohibited photographs or the publication of secret recordings. You or your children are entitled to injunctive relief and compensation. In order to avoid a process, a warning is advisable. Legal claims require prior notification.
The specific punishment depends on the situation and the violated paragraph. If the violation concerns the Art Copyright Act, the legislature provides for a fine or imprisonment of up to one year. In the Criminal Code, the maximum prison sentence is two years. In lighter cases, a fine is sufficient.
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