How do I use images of people in OER in a legally compliant way?
Everyone has a right to their own image as an expression of the general right of personality, Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG. in conjunction with Art. 1 para. 1 GG. Accordingly, they can decide for themselves whether the photograph of them may be reproduced and made publicly accessible. Images of persons may therefore not be published without the prior consent of the persons depicted, Section 22 sentence 1 of the German Art Copyright Act (KUG). If photographs of people are made publicly accessible (e.g. in digital media), this also constitutes the processing of personal data in accordance with the General Data Protection Regulation (GDPR), which has been in force since 2018. This is only lawful if there is a legal basis for it, Art. 6 GDPR. If no more specific legal basis pursuant to Art. 6 para. 1 lit. b)-e) GDPR is relevant, there must either be a legitimate interest in the publication of the recordings pursuant to Art. 6 para. 1 lit. f) GDPR or the consent of the data subject must be obtained.
A legitimate interest can be assumed, for example, if one of the exceptions listed in Section 23 (1) KUG applies:
- Pictures from the field of contemporary history (e.g. pictures of famous personalities)
- Pictures that show a person only as an accessory next to a landscape or other location (objectively speaking, the person is only incidentally in the picture)
- Images of gatherings, processions or similar events in which the persons depicted have taken part (the person depicted must be one of many and must not stand out (e.g. when zooming in); exception: special role at the event)
- Pictures that are not made to order and whose distribution or display serves a higher interest of art - and not the economic interest.
There is one exception to the above exceptions. For example, the publication of images is not permitted under Section 23 (2) KUG if it violates a legitimate interest of the person depicted or, if they are deceased, their relatives. In particular, photographs that
- interfere with privacy or intimacy
- have the purpose of disparaging or ridiculing the person depicted
- used for advertising purposes (e.g. in social media)
- can lead to personal injury
If there is no legitimate interest under the GDPR, the consent of the data subject(s) is required for the publication of the recordings.
There is no legally prescribed form for consent. However, written consent is recommended for evidentiary purposes.
Our sample template can provide an initial orientation.
If you have not taken a photo yourself, you must clarify the rights to the photo before publication and, if necessary, obtain permission to use it. For openly licensed photos, please note the respective license.