For many parents it is completely normal, for others it is a no-go: to publish pictures of their (own) children on the Internet. The information on this topic is also diverse and can be wrong.
1. We therefore summarize the most important principles for you:
Are pictures of (own) children even allowed to be shown on the Internet, e.g. on Facebook, Instagram or also on WhatsApp?
Yes, it is permissible.
There are a few voices in the legal literature according to which the posting of children’s pictures should be fundamentally inadmissible (e.g. by A. Schimke in NZFam 2019, 851). That’s not right.
The parents take care of the children together. This includes that the parents decide whether children’s pictures appear on the Internet or not. This is a result of Article 6 of the Basic Law, according to which the family is particularly protected. This protection includes not only what someone thinks is “good” for the child, but also behavior that is not beneficial. Of course, parents are allowed to smoke. Whether this is “good” for the child or not is another matter. This also applies to a certain extent to showing pictures.
2. Who decides on the publication?
The parents jointly decide whether pictures may be published or not, if so which ones, and also about the place of publication. While WhatsApp is usually only accessible to a smaller group, pictures on Instagram are completely public as long as you don’t have a private profile.
Joint custody is regulated in Section 1626 (1) of the German Civil Code. According to this, the parents (i.e. both parents together, if any!) Have the duty and the right to look after the minor child.
Important: If, for example, the mother keeps uploading pictures and the father likes these pictures or at least knows about the mother’s behavior, it can be assumed that he has generally consented to the publication. Then individual or express consent no longer matters.
3. What kind of pictures can be shown?
In theory all of them. However, there are of course limits. While even artistic nude photography is permitted, images that show children in embarrassing situations are more likely not to be shown. Because the personal care must be on Good of the child and should not be based solely on what parents find “funny” or the like.
4. From what age is it (no longer) permissible?
Of course, it is permissible to proudly show a picture of the new baby! However, as soon as the child is able to understand – this may be the case between 10 and 13 years of age, but at the latest by 14 – and clearly expresses or can express whether he or she agrees with the publication or not, the parents must express the wishes of the child respect. This is what § 1626, Paragraph 2 of the German Civil Code (BGB) provides.
5. What to do if a parent misbehaves?
In this case, stand by the child Injunctive relief to. If mother, father, but also uncle, friend or acquaintance publish inadmissible pictures of the child, the legal guardians can exercise the child’s rights.
The law firm Kötz Fusbahn is often concerned with such cases.
6. Are there any criminal offenses?
Offenses with pictures are there many. This includes, on the one hand, youth and child pornography, but also encroachments on the highly personal area of life by taking pictures in accordance with Section 201a of the Criminal Code. When children’s rights are persistently violated, one comes Child welfare endangerment into consideration, which even makes it possible for the youth welfare office to intervene, § 42 SGB VIII Child welfare stands above the Presumption of innocence. On the one hand. On the other hand, even with a “guilty” victim, it cannot be assumed that the child’s well-being is actually affected. All of this is always a question of the individual case!
In summary it can be said:
- Be aware of your child’s interests when posting pictures on the Internet. Ask yourself whether you want to be shown “like this” yourself.
- Make sure that you as parents decide together about the respective publication.
- If you cannot reach an agreement in the event of a dispute, collect evidence and seek specialist legal advice. Above all, questions of personal rights come into consideration. Get good legal advice!
- Should you yourself be attacked as a “perpetrator”, be it through a criminal complaint or a cease and desist request, you too have the right to first-class legal advice. Make sure of this!