Court of Gelderland

13 May 2020, ECLI:NL:RBGEL:2020:2521

In this case, the court ruled that the grandmother had to remove the photos and was no longer allowed to post new photos. He imposed a penalty. The grandmother violated the Dutch General Data Protection Regulation (AVG), because posting the photos was not a purely personal or domestic activity.

Facebook en Pinterest

The mother did not allow the grandmother to put pictures of the child on her Facebook and Pinterest accounts. The father, who lives elsewhere, indicates that he too does not want pictures of his son on social media.

Self-made photo’s

Grandma states that she took the photos herself. And that she hasn’t used Pinterest for a long time. She also states that she has already removed almost all photos. Now there is only one photo of her grandson on Facebook.

Besides that she states that she has a special bond with her grandson. He lived with her and her husband from 2012 to 2019, until he went to live with his father (their son). The grandmother asks if she can leave this one photo on Facebook.

Purely personal or domestic activity

The District Court considered that the Copyright Act did not apply, because the grandmother took the photos herself. The AVG does not apply to the processing of personal data by a natural person in the exercise of a purely personal or domestic activity.

In this case, it has not been sufficiently established how the grandmother set up or protected her accounts. It is also unclear whether the photos can be found through a search engine such as Google. In addition, it cannot be ruled out that the photos placed on Facebook may be distributed and may end up in the hands of third parties.

AVG

The Court deems the AVG and its implementing law to be applicable. This stipulates that the permission of the legal representative(s) is required for posting photos of children who are not yet 16 years old.

Penalty payment

For this reason, the court orders the grandmother to remove the photos and prohibits her from posting photos in the future. A penalty of € 50,- per day, with a maximum of € 1.000,- will be imposed. The court further stipulates that each party must pay its own legal costs.

What does this mean for other (grand)parents?

Grandparents must respect the authority of the parents and of course the privacy of the grandchildren. On the other hand: is one (normal) picture of the grandson on the grandmother’s Facebook profile really that bad?