Don’t Shoot the GDPR with the Grandma

Dont Shoot The GDPR for the Grandma’

A deluge of posts and articles have invaded the social media. How the GDPR could forbid a grandma to post her grand children’s photos online?!!!

For years, online security and privacy advocates have claimed a simple basic netiquette : ASK BEFORE YOU POST. It’s a fundamental right to wish to protect one’s image in the context of the internet where every scale is exacerbated : the speed, the reach and the lack of oblivion. We have previously wrote on Why Privacy Matters.

There can be various reasons why someone would want to protect its photos from falling into the arms of Facebook or other internet service provider.

The context of a family conflict and a divorce is what has motivated a preliminary proceeding by the Dutch court of 1st instance to order the take down of a photo posted on Facebook by the grandma.

Contrary to the general outcry, this is not a GDPR immixtion into the grandparents freedom of cherishing their grand child.

Although the GDPR has created a most ambitious regulation harmonising 28 EU member states data protection laws, it allows or requires Member States to implement specifications or restrictions on certain rules set out in the GDPR. Sometimes based on issues falling outside the EU’s legislative competence (national security, regulation of the press, the administration of justice,…)or for providing a margin of manoeuvre for Member States to specify their own rules for reasons of coherence. Between these national specificities we can find Various age and conditions of consent or the applicability of the GDPR to deceased. This is an opportunity to allow more flexibility and adaptability to national legal systems and cultures. Harmonisation is not uniformisation. National sovereignties are respected.

The court ruling here is based on a Dutch national legislation inserted into Article 5 of the GDPR, a national exception requiring that in the case of minors, their legal guardian must consent to the data processing.

To understand the judge’s ruling, the context of the dispute is essential. This is a daughter, in accordance with her ex-partner, fighting against her own parents to ask them to take down a photo of a minor child from Facebook. The grandparents had child’s custody for several years before he went living with his father. We have no information on why and how that happened. We have no information on the particular situation of the mother. Could she be a celebrity – the ruling is anonymised – Could she be a protected witness, a whistleblower …. What is the sensitivity of the picture? All we know is that she had obtained from the police an injunction against the grand parents to take down the pictures. they complied with several but left one.

There is an interesting consideration of what is ‘personal and household’ GDPR exemption. Having lost custody, could it be considered that the grand parents did not longer belong to the circle of ‘household’ and the publication on a Facebook page was considered outside the private circle? The judge does mention it was unsure if the Facebook page was private or publicly accessible or the photo searchable by Google. Would the outcome be different if the page was private?

Léon Dijkman has published an excellent analysis of the case on the legal blawg the IPKat. Privacy rights and social media: can a person be prohibited from sharing online a picture of her grandson?

He describes the various conflicting rights. Claiming that ‘social media expressions may be protectable not just by Article 10 ECHR, but also Article 8: the right to family life (see also Article 7 Charter) referring to a 2017 book chapter by Professor Lorna Woods.

The ECtHR has recognised the right to maintain a relationship between a grandparent and a grandchild in 63190/16 Beccarini and Ridolfi v. Italy, at 50. Is this relationship necessary broken by forbidding posting pictures on Facebook?

A balance of rights to strike between the various fundamental but not absolute conflicting rights : the fundamental right to privacy, as protected by Article 8 European Convention of Human Rights (ECHR) and Article 8 of the EU’s Charter of Fundamental Rights and the right to family life in Article 7 of the Charter and the Article 10 on freedom of expression.

This work is licensed under a  Creative Commons Attribution 4.0 International License .

Photography by Geoff Lowe published with the authorisation of the Guardian Tara Taubman Bassirian.