GER: Property Pictures for Ads Require Tenant Permission

Aug 23, 2024 Benn-Ibler Rechtsanwälte

An estate agent needs the consent of the property’s tenant(s) if the agent would like to use photos of the property for advertising purposes. Under the General Data Protection Regulation, such pictures are considered personal data. According to the German District Court of Frankenthal, if consent is not given, the estate agent is liable for damages.

In the case at hand, a semi-detached house that was being rented by a married couple was to be sold. The estate agent handling the sale wanted to create a compelling online synopsis and needed photos of the interior of the property. To this end, the couple gave permission for the estate agent’s staff to visit their home at an agreed time. However, the couple became increasingly uncomfortable with this and felt that they were being watched after being approached by several people about the online photos of their home. Although the estate agent immediately removed the pictures from the Internet, the couple claimed that they had suffered non-material damage which could not be compensated by the removal of the pictures alone.

The couple sued for damages at the Frankenthal District Court, which ruled as follows:

If an estate agent uses images in a sales advertisement without consent, this can give rise to claims for damages in the form of compensation for pain and suffering.

In the case at hand, however, the court ruled in favour of the estate agent and not the couple who had brought the claim, for the following reason:

The tenants had tacitly consented to the creation and use of the images by allowing the estate agent into their home. The General Data Protection Regulation does not require explicit consent, let alone a written one. It was obvious that the photographs would be made available to third parties. However, consent given without this information is not invalid and remains in force, even though the estate agent did not explain that the tenants’ consent could be revoked at any time.

Press Release, LG Frankenthal 3 O 300/23 (4 June 2024)