Previously, I wrote about the hilarious misunderstandings that exist under the AVG regarding the use of photos and videos. That confusion goes on and on. In my list of the 5 most made AVG mistakes, it was the stumbling block. Lately, I have come across many examples again.
A sports association that asked all members for permission to use photos to report on games. When I asked how that would work with the images of the opponent in the photos, it remained silent. A museum emailed me asking if they could still take pictures during exhibitions. Visitors who did not want to could indicate that at the entrance desk and would be "blurred out."
The recent report on NOS about pedophiles tagging videos on youtube with codes so they can be easily found by "insiders" indicates that the privacy risks of footage should certainly not be underestimated.
Defining the AVG: what is the purpose of the photos?
The basic premise of the AVG is that the processing of special data is prohibited. There are a number of exceptions to that prohibition, including explicit consent by the person from whom the data, i.e. the photograph, belongs. Although, based on the explanation of the article, it can also be questioned whether photographs are special data, the common sense is that they are. To process, then, you can ask permission. That consent cannot be tacit. So not, "we process your photos unless you object.
But, there is an escape for asking for that consent. It can be found in the so-called implementation law of the AVG. This implementing law provides additional rules to the AVG that only apply in the Netherlands. Section 43 of that Implementation Act declares articles from the AVG not applicable when it comes to processing for journalistic purposes. So using photos for journalistic purposes is allowed, you don't have to ask permission for it fortunately. That would also be impractical. The concept of journalism can be interpreted broadly in this context, according to older case law. You do not have to have a press pass to fall under it. The webmaster of the sports association's website who uses photos of matches also falls under the concept of journalistic purposes.
So from the AVG, you can photograph and publish to your heart's content without permission if it has a journalistic purpose.
This is not allowed if the purpose is not journalistic, but the photo is intended to identify a person. So for (pass) photos in the association's facebook or for the photo on the pass that is for identification , permission is required.
Publishing a photo of the winning goal does not require permission given the goal again. Nor from the goalkeeper who let the ball through.
Pictures taken for publicity purposes, for example to spice up the website, I find questionable. I would always ask permission for that. This is also good to do because there will always be a photo session.
In short: always consider the purpose of the photos (and videos). If the purpose is journalistic, then no permission is needed. If the purpose is to identify individuals, then permission is required.
Not only AVG but also common sense
The NIS article indicates that it is not only the AVG that guides privacy. The videos of the children had been posted on Youtube by the parents. So in terms of AVG no harm done. This would not have been different if the school or sports club had posted the videos.
What I wrote above about the journalistic exception and consent applies in full to children under 16. Only they cannot give consent themselves. Their parents or legal representatives will have to do so.
So the AVG provides many safeguards, but the NIS article shows, unfortunately, that common sense must do the rest.
Therefore, always think when taking, but certainly when publishing photos and videos. Is it wise to publicly post photo and film reports of activities at the sports club, the school, the clubs? With relatively few resources you can, for example, create a private portal where only after login the photos can be seen. Great for privacy, even though the AVG allows public posting!
This article can also be found in the AVG file
