Rechtbank Gelderland (2020): Can a Grandparent’s Facebook Photos Fall Under GDPR?
Yes, they did here. The District Court of Gelderland held it had not been shown that the grandmother’s profile was shielded enough to rely on the household exemption. GDPR applied, the parents had not consented, and she was ordered to remove the photos.
Case Summary
| Court | Rechtbank Gelderland (District Court of Gelderland), Netherlands |
|---|---|
| Case | ECLI:NL:RBGEL:2020:2521 (case number C/05/368427) |
| Decided | 13 May 2020 |
| Law applied | Art. 2(2)(c) GDPR and the Dutch GDPR Implementation Act (UAVG) |
| Order | Remove the photo(s) within 10 days; penalty of €50 per day of non-compliance, capped at €1.000 |
Background
A mother of three children took her own mother to court after a family falling-out. From April 2012 to April 2019, the youngest child had lived with his parents and siblings at the grandparents’ home, and during that time the grandmother posted photos of the children on Facebook. The mother asked several times for them to be taken down, and also asked for an old photo of her and the children to be removed from Pinterest (TAG Alliances).
In February 2020, the mother wrote giving a 5 March deadline before legal action. By the time of the April hearing, the grandmother had removed all but one photo from Facebook (The Register). She wanted to keep photos of the youngest child, citing their special bond from caring for him (TAG Alliances).
The Court’s Reasoning on the Household Exemption
The court found it had not been established that the grandmother’s profiles were shielded enough for the household exemption to apply; posting on Facebook could expose the photos to third parties and search engines. So GDPR applied (ruling, para. 4.5; The Register).
Under the Dutch implementing act, publishing photos of children under 16 needs the consent of their legal representative, and that consent was missing (DPReview). The court ordered removal within ten days, with a penalty of €50 per day capped at €1.000 (The Register). Children’s data get particular protection under GDPR more broadly; see Recital 38.
Timeline
Amber marks the decisive decision or ruling.
| Date | Event |
|---|---|
| The youngest child starts living with his parents and siblings at the grandparents’ home, where the grandmother posts photos of the children | |
| The youngest child moves to live with his father | |
| The mother writes to the grandmother setting a removal deadline before legal action | |
| Deadline in the mother’s letter passes without full removal | |
| The District Court rules that GDPR applies and orders the remaining photo removed |
Why This Case Still Matters
The case was reported internationally in May 2020 (The Register, DPReview) because it applied GDPR to something most people consider ordinary family life. It shows how the audience test from Lindqvist and Buivids plays out on a personal social media profile, and that the person relying on the exemption may need to show the audience was actually restricted.
The court’s reasoning rested on the lack of evidence that the profile was restricted. Commentators at the time noted that tighter audience settings might have kept the posts within the exemption (DPReview). The simpler step was also the one the mother kept asking for: get the parents’ agreement, and take photos down when they object.
Frequently Asked Questions
Why did a Dutch court apply GDPR to a grandmother’s Facebook posts?
Because it had not been established that her profiles were shielded enough to rely on the household exemption. Posting on Facebook could make the photos accessible to third parties, so the exemption did not apply and GDPR governed the posts.
Whose consent was needed to post the grandchildren’s photos?
The consent of the children’s legal representatives. Under the Dutch GDPR Implementation Act, publishing photos of children under 16 requires consent from their legal representative, and the parents had not given it.
What exactly did the court order?
The grandmother had to remove the remaining photo within ten days. If she failed to do so, she would owe €50 for each day it stayed online, up to a maximum of €1.000.
Would private Facebook settings have changed the outcome?
Possibly. The decision turned on the lack of evidence that the profile was restricted, and commentators noted that limiting who could see the images might have kept the posts within the household exemption.
Does this ruling bind courts in other EU countries?
No. It is a decision of a Dutch district court and binds only the parties. It is a useful illustration of how the household exemption can apply to family social media use, not a precedent for other Member States.
Building a product where people share photos of others? Your users may be exempt when they post to a closed circle. Your service is not: Recital 18 keeps platforms fully in scope. A consent management platform is one way to handle consent and transparency for your own processing.
Sources
- Rechtbank Gelderland, 13 May 2020, ECLI:NL:RBGEL:2020:2521 (Dutch)
- The Register, Wanna force granny to take down that family photo from the internet? (22 May 2020)
- DPReview, Dutch court rules grandmother must remove photos of grandchildren from social media under GDPR (May 2020)
- TAG Alliances, The “Household Exemption” in GDPR (May 2020)
- Regulation (EU) 2016/679 (GDPR), Recital 18 and Article 2(2)(c): official text