More and more people in Germany are getting tattoos. However, the work is not always carried out to the satisfaction of the customer. Botched designs or spelling mistakes are some of the common tattoo disputes.
Tattoo disputes are a regular occurrence. You can go wrong with tattoos. Spelling mistakes occur – “Bon Jovi” quickly becomes “Jon Bovi” or “Mutti” suddenly only has a “t”. This is then quite embarrassing – for the rest of life. But sometimes the ordered motif is simply drawn incorrectly, the wrong colors are used or the tattoo is engraved so deep that the color becomes blurred. And in worse cases, there are even health problems.
- Tattoo Dispute: When is bodily harm present?
- Tattoo Disputes: What do the courts say about assault?
- What information and information obligations does a tattoo artist have?
- What applies to the tattooing of minors?
- What colors can the tattoo artist use?
- How can you prove the tattoo artist made a mistake?
- What to do if the tattoo is defective?
- Touch up by the same tattoo artist?
- Practical tip
Tattoo Dispute: When is bodily harm present?
Like a medical intervention, getting a tattoo is actually a physical injury. This is not punishable for that reason alone and does not trigger any claims under civil law because the customer has consented to it. However, if something happens that the customer has not consented to, things will look different.
With tattoos, however, it is usually not about the question of whether the tattooist could have committed a criminal offense for bodily harm. Rather, bodily harm is the basis for asserting a claim for compensation for pain and suffering under civil law, according to provisions such as Section 253 (2) and Section 823 of the German Civil Code (BGB).
Tattoo Disputes: What do the courts say about assault?
The Hamm Higher Regional Court decided in 2014 that only a technically and visually flawless manufacture of the tattoo does not constitute bodily harm. After all, this is about work that causes physical pain in the client and whose poor execution can lead to health problems. The proceedings concerned a woman whose tattoo showed gradients and which was also artistically rather clumsy.
The court awarded the woman 750 euros in compensation for pain and suffering as well as the cost of laser treatment as compensation (judgment of 5 March 2014, Az. 12 U 151/13).
What information and information obligations does a tattoo artist have?
In order for someone to legally consent to a tattoo, they need to know what is actually in store for them. Otherwise consent is pointless. Therefore, the tattoo artist has certain duties to provide information.
He has to explain the work process and the possible health risks to the customer in detail, the pain to be expected, and the risk of inflammation or an allergic reaction to the paints. Pregnant women and people in poor health may be at particular risk of infection. If a customer takes antibiotics or blood thinners, there are health hazards with a tattoo.
All of this should be pointed out, as well as the correct treatment of the skin after the tattoo has been carried out. Of course, the duty to inform does not go as far as that of a doctor before an operation. The essentials, however, have to be conveyed.
In general, consent can only relate to work that has been carried out correctly. Therefore, one always assumes a lack of consent in the case of a technically incorrectly executed tattoo or one that has a different pattern than the one ordered or even has spelling mistakes.
What applies to the tattooing of minors?
There is no legal age limit for tattoos. If a customer is a minor, the effectiveness of his consent depends on whether he can even understand what he is getting into based on his mental maturity. Therefore, a blanket parental permission may not be sufficient.
The maturity of the client is difficult for the tattoo artist to judge. Many tattoo studios reject tattoos for minors.
What colors can the tattoo artist use?
Tattoo inks get under the skin and can get into the bloodstream. It is therefore not irrelevant what they contain. Since the German Tattooing Agent Ordinance came into force on May 1, 2009, there have been rules for inks marketed in Germany.
Certain dyes are expressly prohibited, such as the known carcinogenic azo dyes and the particularly allergenic p-phenylenediamine. Tattoo inks may only be put on the market if they contain a series of mandatory information, such as the manufacturer, the batch number and how long the ink can be used after opening.
But: The existing regulation is criticized again and again because scientific studies (e.g. by the Stiftung Warentest 2014) show that many tattoo inks still contain potentially dangerous substances. Many tattoo artists order their inks online and from foreign manufacturers. There is no positive list of harmless colors, just as there is no official approval.
Test certificates are issued solely by the manufacturers and are not controlled by the authorities. After all, the federal states carry out random tests of the colors used in tattoo studios. Tattoo artists can face damages for using inks that are known to be harmful to health.
Customers can only be advised to insist on harmless colors with a test certificate from the manufacturer. The tattoo artist should be able to confirm this in writing, stating the manufacturer, the ingredients, the batch number and the expiry date.
How can you prove the tattoo artist made a mistake?
If the tattoo deviates significantly from the template, an error must be assumed. The template should be stored accordingly. It also makes sense to have witnesses for the tattooing process who, for example, can say something about the explanation by the tattooist. The technically correct execution can possibly be assessed by another tattoo studio.
What to do if the tattoo is defective?
The faulty tattoo can be removed again as part of a laser treatment. The injured party can demand the cost of the treatment from the tattoo artist as compensation; if necessary, however, he must sue them. The tattoo artist can also claim compensation for pain and suffering, the amount of which depends on the respective circumstances in the individual case.
Laser treatment can change the pigmentation of the skin or cause scars. In addition, compensation for pain and suffering can be due here. Under certain circumstances, the tattooed person can also claim back the costs for the unsuccessful tattoo (AG Neubrandenburg, judgment of 10.10.2000, Az. 18 C 160/00).
Touch up by the same tattoo artist?
The execution of a tattoo is basically a work contract. Some tattoo artists now offer their disappointed customers that they can touch it up themselves. Because: According to the contract law of the German Civil Code, two attempts at improvement are the right of the contractor before other claims are asserted.
But: It’s different with tattoos. Because a tattoo is not a water pipe. In the decision already quoted, the Hamm Higher Regional Court decided that the customer did not have to get involved in a touch-up by the same tattoo artist. It is a matter of a contract for work and services, in which the entrepreneur is allowed to rectify defects in principle before other claims can be asserted.
However, work that caused physical pain cannot be compared with other work. Here trust is lost (judgment of March 5, 2014, Az. 12 U 151/13).
Stay away from tattooists who cannot explain the risks in detail or who cannot provide any information about the colors used. If you do have health problems after getting a tattoo or if it is not carried out properly, a civil law attorney can help you enforce your claims.