Surely, when organizing an event, you have already asked yourself the following questions: « can I take pictures of my attendees? » and « if so, how difficult is it? ».
Broadly speaking, the answer to these questions is twofold.
1. Pursuant to Article XI.174 of the Belgian Economic Code, the so-called “right to image” requires that, before taking and publishing a picture of an individual, his/her “consent” (to be understood in a civil law context) must, in principle, be sought for (i) the taking of the picture, and (ii) the subsequent use thereof.
However, in some circumstances, the permission to take a picture can be presumed, e.g. if the individual clearly poses for the photographer. Nevertheless, his/her permission to subsequently use this picture could still be required unless, according to predominant case-law and doctrine, (i) (s)he is not identifiable in the picture at stake, (ii) “accidently” becomes visible in the picture (without an obvious focus on him/her), or (iii) the picture is subsequently used in accordance with his/her “normal expectations” (such as ambient pictures of a group activity). In such cases, it is normally sufficient to inform the attendees that pictures might be taken and published for one or more particular purpose(s).
2. Also, when processing “personal data” (i.e. any information that relates to an identified or identifiable individual), such processing must be in accordance with applicable data protection law (i.e. the EU General Data Protection Regulation GDPR and the Belgian implementing Act of 30 July 2018).
It means, in particular, that you must have a valid lawful basis in order to process these pictures (since they contain “personal data”) and provide the individuals concerned with the required information.
Consent (to be understood in a data protection law context) is just one of the lawful grounds for data processing. Another area for focus is the “legitimate interests”.
So, what to conclude from all this?
Yes, even with the entry into force of the GDPR, taking pictures at your event remains possible, which is good news. However, the sole instruction “say cheese!” given by your photographer is most likely not sufficient if you consider several uses, such as publishing these pictures on your social accounts.
Timely and appropriate information to the individuals concerned is key to this process, taking into account all the relevant factors.
Do not hesitate to contact us, should you need a hands-on approach for your next event.