Updated on August 20, 2026: The decision discussed here predates the General Data Protection Regulation. Consequently, information has been added regarding the data protection aspects of photography, the admissibility of such evidence in court, and practical guidelines for preserving evidence.

In early 2018, the Stade Regional Court ruled on the right to one’s own image (Case No.: 2 S 20/17). It determined that a person who photographs tradespeople may do so for the purpose of preserving evidence. In this regard, there is a legitimate interest that outweighs the right to one’s own image of the person depicted under § 22 of the German Artistic Copyright Act (KUG). Thus, in such a case, the photographer is not liable for an injunction or “compensation for pain and suffering” in any form.

Craftsman photographed: A neighbor dispute with photos

The decision was based on a neighbor dispute par excellence. The owners of two semi-detached houses got into a deep dispute following roofing work. The main issue was the roofing work on the two semi-detached houses. The work on the roof had only been commissioned by one of the owners, but was carried out on both roofs. After the parties were to share the costs, the residents of the left-hand semi-detached house discovered that the costs were completely excessive. Although the roofing company’s invoice included hours of work by several roofers, the owners of the left half only saw one roofer on the roof during the construction work. Furthermore, he only worked with a ladder and not with expensive scaffolding on the parties’ house as stated.

This dispute went so far that a court was subsequently allowed to deal with the issue. During this process, work again had to be carried out on the parties’ roof. The owners of the semi-detached house on the left had photographed the workmen to preserve evidence – so as not to receive another surprise bill. The roofers could be seen on a ladder on the roof. The roofer was depicted with his entire body from behind and partly in profile.

Craftsman warns photographer and demands “compensation for pain and suffering” – in vain

Shortly thereafter, the photographer received a cease-and-desist letter on behalf of a tradesman whose name he did not know. The tradesman believed he could recognize himself in the photos—which had been introduced into the ongoing court proceedings as evidence. He argued that their introduction into the public court proceedings also constituted publication of the photos. He had never consented to such publication at any time. Consequently, the introduction of the photos into the proceedings constituted an unlawful infringement of his right to privacy.

In addition to a cease-and-desist declaration with penalty clause, the photographed craftsman demanded EUR 1,500.00 as “compensation for pain and suffering” to make good the alleged immaterial damage. It is still unclear how the craftsman became aware of the photos. However, the warning letter came from the same lawyer who represented the owners of the semi-detached house on the right in the court proceedings. The purpose of the warning was therefore clear: the incriminating photos were to be removed from the proceedings.

Preservation of evidence takes precedence over the right to one’s own image

However, the craftsman’s lawsuit before the Stade District Court was unsuccessful. The craftsman was unable to prove to the court’s satisfaction that he was the person recognizable in the photos. Therefore, he was not entitled to bring an action in the first place. Even if this were the case, the claim being brought was ruled out (AG Stade, judgment of 27.04.2017, ref.: 61 C 821/16).

It is true that submitting the photos to the Stade Regional Court in the pending parallel legal dispute constituted a distribution of the photos. However, the owners of the semi-detached house on the left were entitled to protect their legitimate interests. According to the judges, the evidentiary purposes took precedence over any rights to the image of the person depicted. The interference with the general right of personality or the right to the plaintiff’s own image was to be regarded as extremely low-threshold. According to the so-called sphere theory, the photos only encroach on the plaintiff’s social sphere. They only show the plaintiff carrying out his professional activity. And he carries out this activity predominantly in areas visible to the public. Even if one were to see this as an encroachment on the plaintiff’s general right of personality, the interests of the roofer would have to take a back seat in the context of a balancing of interests in favor of the interests of the owners for the purpose of preserving evidence in the aforementioned parallel legal dispute.

No “compensation for pain and suffering” for craftsmen

The court also clearly rejected the claim for compensation for pain and suffering. The claim for compensation for pain and suffering was to be understood as a claim for payment of monetary compensation, but was ruled out here. This is because the violation of personal rights can only justify a claim for compensation for non-material damages in exceptional cases. Finally, not every violation of the general right of personality could give rise to a claim for monetary compensation. It would be necessary for the infringement to be very serious and the impairment could not be compensated for in any other way.

In the present case, such a claim already fails due to the serious interference, which does not exist here, because only his social sphere was affected by the interference.

The Stade Regional Court confirmed the opinion of the Local Court in the form of a corresponding reference order and advised the craftsman to withdraw the appeal in a detailed and reasoned decision. The craftsman followed this advice.

What has changed as a result of the General Data Protection Regulation?

The decisions of the Local Court and the Regional Court of Stade were handed down shortly before May 25, 2018, and assess the case solely under the Art Copyright Act. Since then, a second layer has been added: Even the mere act of taking a photograph in which a person is recognizable constitutes the processing of personal data and requires a legal basis. The legitimate interest under Article 6(1)(f) of the GDPR—which includes the preservation of evidence for a specific impending or ongoing legal dispute—is typically applicable.

In the case of private clients, the household exception may also apply, pursuant to Article 2(2)(c) of the GDPR: Processing carried out solely for personal or family purposes is not subject to the Regulation. However, the European Court of Justice interprets this exception narrowly and rejects it as soon as the photograph also captures public space (ECJ, Judgment of December 11, 2014, C-212/13, Ryneš). Someone who photographs their own roof from their own property may be able to invoke this exception; someone who also captures the street in the shot, however, likely cannot. In both cases, the balancing test under the Artistic Copyright Act still applies as soon as the image is shared.

Can still be used even if errors occur during recording

Even if the recording is subject to challenge under data protection law, it does not follow that it would be inadmissible in court. The Federal Court of Justice has ruled with regard to dashcam recordings that a violation of data protection law does not automatically result in a prohibition on the admission of evidence; what is decisive is a case-by-case balancing of the right to informational self-determination against the interest in effective law enforcement (BGH, judgment of May 15, 2018, VI ZR 233/17). This reasoning can be applied to photographs taken at a construction site, and it aligns with the reasoning of the Stade Regional Court.

The order is important: the admissibility of the evidence in the proceedings and the legality of taking the photograph are two separate issues. Therefore, anyone who takes a photograph unlawfully may face a claim for injunctive relief or damages, even if the court simultaneously admits the photograph as evidence.

Guardrails for Preserving Evidence at the Construction Site

The clearer the photograph serves the purpose of providing evidence, the more likely the balance will tip in favor of the photographer. In practice, this means that the work is being documented, not the person. Individuals should only be photographed to the extent necessary for evidentiary purposes, such as to document the number of personnel deployed or the equipment used. Close-ups of faces, photos taken during breaks, and images from employees’ private lives have nothing to do with preserving evidence.

Equally important is how the images are handled afterward. They belong in the case file and in the legal proceedings, not on social media, in a review, or in a neighborhood chat group: There is no justification for publication—the kind provided by the preservation of evidence—and that is where liability begins, which the photographer in the case discussed was fortunate enough to avoid. It also makes sense to record the date and reason for taking the photos and to delete them as soon as the matter is resolved.

Entitlement to injunctive relief is always a question of the individual case

As the judgment of the Stade District Court makes clear, not every unwanted recording is a violation of personal rights with consequences. It always depends on the distribution or making available to the public without the consent of the defendant. However, even this can be permissible in individual cases after weighing up the circumstances. Anyone who photographs craftsmen may only do so to preserve evidence without the corresponding consent.

Claims and warnings in the area of the right to one’s own image should therefore always be treated with caution. Unfortunately, the legality can often only be recognized at second glance by the trained eyes of a lawyer.

Frequently Asked Questions About Photographing Artisans