Data protection implications when publishing photographs of living spaces in real estate exposés
In recent years, legal disputes concerning data protection in the marketing of residential real estate have gained increasing significance. In particular, the ruling of the Frankenthal Regional Court (Case No.: 3 O 30/23, published on 02.08.2024) brings the careful handling of visual representations of a property’s interior into focus. This decision sets new standards for all parties involved in the transaction process – from private sellers to commercial intermediaries and marketing platforms.
Balancing marketing interests and data protection rights
The publication of interior photographs in the context of the GDPR
Photographs of the interior of an apartment or house regularly allow conclusions to be drawn about the individual living circumstances of the current occupants. Publishing such photographs in online exposés or on real estate portals therefore involves personal data as defined by the General Data Protection Regulation (GDPR), provided that identification or a connection to the residents is possible. This can already result from personal belongings, furniture, artwork, or individual interior design elements. The Frankenthal Regional Court has clarified that, without explicit consent from the authorized persons, such images may not be published.
Legal framework: Consent, balancing of interests, and information duties
In this context, obtaining effective consent under Art. 6 sec. 1 sentence 1 lit. a GDPR is of considerable importance. Alternatively, publication may be based on a balancing of interests (Art. 6 sec. 1 lit. f GDPR), provided that overriding legitimate interests of the publishing party can be demonstrated – although with sensitive images of living spaces, this is generally a high hurdle. Providers must also ensure comprehensive transparency and information obligations under Art. 13 GDPR towards affected persons; this includes stating the purposes of data processing, the legal bases, and the storage duration.
Civil and data protection liability risks
Claims for injunctive relief, removal, and damages
The unauthorized publication of interior photographs can result in significant civil law consequences. In particular, affected residents may have claims for injunctive relief and the removal of the photos. Under the GDPR, there is also a right to compensation for non-material damages (Art. 82 GDPR), which goes beyond mere material compensation. Real estate providers are therefore well advised to always examine the admissibility of such online publications in advance and, if possible, to obtain appropriate consent declarations.
Impact on contractual relationships and agent liability
If brokerage companies publish interior photographs without a legally secure basis, this may also give rise to liability issues within the contractual relationship with the client or third parties. An unlawful publication of data may constitute a breach of duty, potentially resulting in claims for damages. These aspects should be taken into account in contract drafting and throughout the entire brokerage process.
Operational awareness and risks when using platforms
Importance for sellers, intermediaries, and third-party platforms
Sellers of real estate are often caught between the desire for an appealing marketing strategy and the legal data protection requirements. Third parties, especially real estate portals and exposé managers, also face the risk of shared data protection responsibility pursuant to Art. 26 et seq. GDPR. Engaging or using external service providers does not release the parties involved from independently reviewing whether exposé content is designed in compliance with data protection laws.
Importance for transparency and building trust
Strict compliance with data protection requirements is, not least, also a matter of business reputation and building trust in the market. Violations can result in significant reputational damage and regulatory actions, including fines imposed by supervisory authorities. Transparency regarding the use of photos and the legal grounds underlying their use thus remains a key requirement in real estate marketing.
Practical relevance and outlook
The recent decision by the Frankenthal Regional Court makes it clear: With the increased use of digital marketing tools and the growing visibility of sensitive residential information, the demands for a legally compliant handling of images of interiors have become more extensive. Protecting privacy remains the top priority, and any market requirements take a back seat to this.
Further court decisions concerning the relationship between data protection and real estate marketing are to be expected, as there are still many unresolved individual questions and the practical interests involved are diverse.
Source note: Report is based, among others, on the decision of the Frankenthal Regional Court, Case No. 3 O 30/23, published on urteile.news [accessed on August 2, 2024]. The information provided offers only a preliminary overview of the relevant legal topics and does not claim to be exhaustive.
Given the complexity and dynamic nature of data protection issues in connection with real estate transactions, the Rechtsanwalt at MTR Legal are available nationwide and internationally to provide competent support in addressing legal questions or uncertainties as part of a structured dialogue.
