Visual material
Almost everyone makes photos and videos. If other people are in these photos or videos, this may constitute an infringement of their privacy. Especially if the images are placed on the Internet, for example. This is why making photos and videos without good grounds is not permitted. Because as soon as people can be recognised in the image, these are personal data. And in that case, the privacy law, the General Data Protection Regulation (GDPR), applies. It should be noted, though, that it makes a difference who makes the photo or video and what this person does with it.
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Personal use
Does someone make photos or videos for personal use? For example, as a visitor of a festival? In that case, the privacy law does not apply. This is because an exception for personal or domestic use (also called the ‘household exception’) applies here. There is one requirement, however: that this person keeps the photos and videos private or shares them at most in a highly restricted circle. For example, in a small WhatsApp group.
Does that person want to share the photos and videos in a wider circle? For example, on a public Facebook page? In that case, the exception for personal or domestic use does not apply. A legal basis from the GDPR will always be required then. In most cases, this means that the people who are in the photos and videos have to give consent.
Business use
The exception for personal or domestic use does not apply for business use either. Does someone make and publish photos and videos on behalf of an organisation, for professional or commercial purposes? Then the GDPR applies. This means that a legal basis from the GDPR is required to be permitted to make and publish photos and videos. For example, consent from the people who are in the photos and videos.
Publication on the Internet
Are you looking for more information about publishing photos and videos on the Internet? And how you can have photos and videos removed from the Internet? Also read Personal data on the Internet.
Quick answers
When can a person in a photo or video be identified?
You can assume that persons in your photos and videos are nearly always identifiable. To determine whether someone is identifiable, you will have to consider all means that can be used for identifying people. A recognisable build or a recognisable posture may therefore be enough to identify someone.
Photos and videos in which people can be identified are personal data. And this means that the privacy legislation applies.
Is filming a funeral and broadcasting it through the Internet allowed?
Yes, this is allowed on certain conditions. Watching a funeral (again) may help surviving dependants cope with their bereavement. The infringement of the privacy of the visitors of the funeral is substantial, however.
That is why these requirements apply:
- Undertakers are only permitted to make image and sound recordings of a funeral if they have been instructed by the client to do so. And if the recordings only are provided within the restricted circle of family, friends and acquaintances.
- Undertakers also have to inform the client that they only are permitted to provide the recordings to those people ly.
- Finally, undertakers have to place at sign at the area where films are made with clear information that filming takes place there.
Livestreaming a funeral
The online broadcasting (livestreaming) of a funeral is permitted on certain conditions. Undertakers are only permitted to livestream a funeral if they have been instructed by the client to do so. And if the recordings are only accessible to the restricted circle of family, friends and acquaintances only.
Besides, the security of the images must have been arranged properly:
- Access to the images via the Internet is provided by means of a login code. Only the client can determine who gets the login code. When providing the login code to the client, the undertaker has to state clearly that the client is permitted to give the login code to persons from the restricted circle of family, friends and acquaintances only.
- Besides, the security of the website has to be in order. And the client must be the only person who can download the recording.
- Finally, the undertaker has to destroy the recording immediately after the stream has been closed. This is after a month at most.