Court case C/05/368427 / KG ZA 20-106 – Court Ruling (Netherlands, 2020)

A mother of three underage children (plaintiff) filed a claim in the Court to cease the posting of her children’s photos by their grandmother (defendant) on social media. The plaintiff argued that the defendant had not obtained a consent from her or her ex-partner – the legal representatives of one of the children concerned. Despite several letters requesting the defendant to remove photos from her Facebook page, the defendant did not comply with the request. The defendant’s child (child 1), whom the current proceedings concern, is under 16 years old. The Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening gegevensbescherming) (“UAVG”) stipulates that the posting of photos of minors who have not yet reached the age of 16 requires their legal representative(s)’ consent. The plaintiff, as a legal representative, had not given permission to post photos of her children on social media. In the case of child 1, his father also had not granted permission to the defendant. The Dutch GDPR Implementation Act (Uitvoeringswet Algemene Verordening gegevensbescherming) (“UAVG”) stipulates that the posting of photos of minors who have not yet reached the age of 16 requires the permission of their legal representative(s). The Court ruled that it was impossible to establish with certainty that the posting of photos on social media fell under the “household exemption” Article 2(2)(c) GDPR. Therefore, such processing of plaintiff’s photos falls within the scope of the GDPR. Given the lack of consent, the Court ordered the defendant to remove the photo of child 1 from her Facebook page as well as to remove the photo of the plaintiff from the Pinterest account. In addition, the defendant is prohibited from posting without permission photos of plaintiff’s minor children on social media.