GDPR no fan of politics

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Here’s one to get Jeff’s steam up…

The local chapter of the SDP in Barsinghausen had campaigned for years to get a pedestrian crossing put in on a busy road. They finally got it installed and on their Facebook fanpage, they included a photo of the workers installing the traffic light and an old photo from one of the meetings, where they discussed the matter.

In the latter were the couple S. (German anonymity laws prohibit the naming of the person(s)) were visible. Mr. S. was approached by several colleagues about his appearance on the SDP Barsinghausen Facebook fanpage and he felt uncomfortable about it. He approached the SDP to have the photo removed, they replied, saying it was freedom of the press (the photo had originally been published in a newspaper in 2014), but they did remove the photo.

Not entirely happy, they then went to the Data Protection Representative for the State of Lower Saxony and asked them to check the validity of the claim.

The SDP chapter, on the other hand, used the artist laws and press laws to try and justify them using the photo (for which they did not have a waiver), plus the fact that it was a crowd photo.

The Data Protection Office replied that it did fall under GDPR, photos of people are personally identifiable data. And the SDP were a political party, not press.

The SDP chapter went to court to try and get the decision overturned, but the court took the DPO’s side and refused to hear the issue.

The upshot is, that a Facebook “fanpage” is not a legitimate press outlet and therefore press laws over photographs can’t be used. If you are going to put a photo on the fanpage, you need to ensure you have waivers from everyone in the photos.

The wording says that, although the photo was originally used in a news article and if you attend an event, you cannot expect to not appear in photos in the press. But you should, on the other hand, not expect the image to re-appear from the depths of oblivion, especially when the site owner is not a recognised press outlet.

The final verdict is, that the press has certain freedoms, which not everyone can make use of. Especially fansites and other online publishers, who do not follow journalistic goals, can’t be careful enough with how they handle personal photos. Not every offence against the GDPR (DSGVO in German) will result in a fine of just a few hundred Euros.

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That is very shaky ground because, what is the definition of press? If the government is the only one who can define who the press is, then you loose the freedom of the press (as the government controls the inlet of individuals into the group named “press”). An individual could be considered part of the press just by publicly discussing current events, i.e. any blogger or vlogger.

Furthermore the image was public domain prior and, if the meeting was governmental in any nature, then it is reasonable to assert that no one in the meeting has a right to privacy, being a public meeting.

I know that in the USA if you can’t have a reasonable expectation of privacy (public area, public official that is on duty, etc.) you can not lay claim to the right not to be recorded.

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Press is clearly defined. And this is the court, not the government deciding.

The point being a fan site on Facebook is not the press. A political party is not the press.

If the paper / journalist had reused the photo on their site, there would have been no come back. But the political party took the photo and used it for non-journalistic purposes, without getting the permission of the people in the photo first.

They had no right to use the photo and they used it for a purpose that the people in the photo had no right to expect it to be used. Therefore they were fined.

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But that is my point. The government has defined what “press” is and deemed that everything else can be censored. A fan site can be a source of news when things aren’t being reported through normal channels. Just the same that a short TikTok of an official doing something illegal can be news. TikTok isn’t a “press” outlet according to the government and as such these types of actions are a removal of a freedom of speech.

My point is simply that freedom of speech and freedom of the press are, for the most part, one and the same. The government removed the ability for a group to discuss and identify someone that has hindered their views and actions because the site was deemed as not fitting a definition made by the government. Furthermore, the official that was spearheading the censorship was a member of said government, if I ready your post correctly.

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Yes, but that still doesn’t make it a news site or the people who write for it journalists by profession - professions are closely controlled in Germany each has its Berufsgenossenschaft (professional association), of which you have to be a member (this is a controlling and lobbying body for the profession, it is not a union, you can be a member of a union over and above this, but every company needs to register with its relevant Genossenschaft.

DSGVO (German GDPR) states that, if you are not a public figure, you have a right to privacy (if you are a public figure, you have a right to privacy on private property - no telephoto lenses over the fence, when you sunning by the pool). If you are photographed in public, the photographer needs a release to use it for the purpose declrared on the release. If you don’t want to have your photo used online, you can explicitly say it cannot be uploaded to the Internet - something my wife says every time someone (even family) points a camera in her direction.

Press have a certain amount of leeway, which is what happened here, they were at a public debate and they were photographed in 2014 and they landed in the paper. Everything fine.

The SDP chapter (ironically, the SDP helped define the DSGVO) then dug up the photo from the newspaper’s archives and illegally posted it on Facebook, without gaining a release from the people on the photo.

There is no freedom of speech. The freedom of the press is enshrined in law. German law on “free speech” is actually laws on what you cannot say, rather than saying you can say anything. For example it is illegal to deny the holocaust, it is illegal to aggrandize National Socialism, hate speech is illegal, incitement to riot / to harm / to kill is illegal.

The press is also not allowed to identify people. If you go on trial for murder, for example, the press would only be able to refer to you as Soul D., they wouldn’t be allowed to say where you live and they wouldn’t be able to show your face - any pictures would have to have the face blurred out.

The group wasn’t trying to identify these people, it was using the image as part of a puff piece to show that they had, after 5 years, managed to get a pedestrian crossing built. It is perfectly legal for them to advertise themselves this way, but if they use photos of the general public for this purpose, they need to get a release.

The key bit being, the original photograph was used for as part of a news report on an event, the re-use 5 years later was as part of an advertisment. The subjects in the photo had no expectation that the photo would be used in such an advertisment, so the image had to be removed from the SDP fan page.

Your right to privacy, over here, is treated very seriously and there are very strict guidelines about how you can name names and show faces / publicly identifiable information.

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