In a time when the boundaries between public and private space are increasingly blurring, the general right of personality under Article 2 (1) and Article 1 (1) of the Basic Law is coming into sharper focus in the context of data protection law. In an era shaped by digital media and a constantly accessible online world, influencers and other celebrities, in particular, face the challenge of protecting their personal data, while at the same time the public has unprecedented access to their lives.

The most important points in brief

• The publication of an image of a prominent person generally requires their prior consent, unless the public interest outweighs it.
• The GDPR and the Copyright Act for Artists apply.
• Whether the publication of secretly recorded image and sound material in an identifying manner is permissible always depends on an individual balancing of the right to privacy against freedom of expression and the press.
• The higher the public interest in the content of the recordings, the more freedom of opinion and the press takes precedence.

Publication of image recordings

To the extent that persons are recognizable in photographs, the images constitute personal data within the meaning of Art. 4(1) of the General Data Protection Regulation (GDPR).
The possibility of recognizing a person in a photo does not depend on whether the photographer can assign individual faces to specific people. Rather, an abstractly determinable personal connection is crucial.

When processing such data, which occurs automatically with digital photos, Article 2(1) of the GDPR applies.

Data processing, which includes not only the creation of recordings but also their publication, is often based on legitimate interests according to Art. 6(1)(f) GDPR.

For photographs published in the journalistic field, the Copyright Act (KunstUrhG) is applicable due to an opening clause, not the GDPR regulations.

According to § 22 of the German Art Copyright Act (KunstUrhG), the processing or publication of images of individuals is generally only permitted with the consent of the person depicted. However, this principle does not apply without restriction to individuals who are known in legal German as „persons of contemporary history,“ such as famous athletes, influencers, or other public figures.

Images of these individuals may also be published without their consent pursuant to § 23 Abs. 1 of the German Copyright Act (KunstUrhG). However, this does not apply without restriction. It always depends on the specific circumstances of the respective case, as even famous personalities have a right to privacy and personal sphere. Therefore, a careful balancing of interests is always required to decide whether a particular image can be assigned to the realm of contemporary history.

As a general rule, the more a person is in the public spotlight and exposes themselves to it, the more likely they are to have to accept image reporting, especially if it is directly related to their public role.

Production and Use of Sound Recordings

Furthermore, the question arises as to whether journalists, for example, have the right to make audio recordings of conversations.

Even if it is only an audio recording, personal data is processed within the meaning of the GDPR if the recorded person is identifiable. For this reason, the question of when it is permissible to make audio recordings is also fundamentally governed by the GDPR.

If a person is identifiable through an audio recording and their voice remains recognizable, such a recording may only be made if the data subject consents or if another legal basis according to Art. 6 GDPR exists. However, with surreptitious audio recordings, the required consent is often missing, which generally makes their creation unlawful.

The provisions of the GDPR are often difficult to reconcile reasonably with the requirements of journalism, especially in investigative research. Journalists rely on in-depth and investigative work. If they were to require consent from the individuals concerned for every audio or video recording, it could significantly hinder comprehensive and critical reporting, as this consent would give the individuals concerned the opportunity to obstruct journalistic work. To address this conflict, special exceptions to these regulations have been created for journalists.

After the Case law of the European Court of Justice (CJEU) data processing is considered journalistic if it aims to disseminate information, opinions, or ideas to the public through any medium of transmission. However, in national case law, the mere fact that a publication of information is relevant to the formation of public opinion does not automatically mean it is considered journalistic activity. An essential condition is that the opinion-forming function of the activity is dominant and not merely playing a subordinate role.

In Germany, this leeway is utilized through the so-called media privilege, which is enshrined in the state press and media laws, as well as the Interstate Broadcasting Treaty. This privilege exempts journalists from most GDPR requirements. The main purpose of this privilege is to resolve the conflict between data protection and the fundamental right to freedom of the press. It allows journalists to research and report independently and at their own discretion, without having to obtain consent for audio and video recordings. In certain cases, however, they can still be held liable under Section 201a of the German Criminal Code (StGB).