Both competing interests
- your right to control the use of your image and
- the legitimate interests of the state or other persons
have to be balanced against each other, and a fair balance has to be found. There have to be sufficient arguments as to why the interests of others outweighed your rights and the other way around in the particular case.
The method of taking the photo and the circumstances in which it was done
Was the picture taken with, or without, your knowledge and consent? If it was taken without, was it possible to obtain your consent to being photographed? Even if you consent to the taking of a picture, this does not mean that you have automatically agreed to its publication. In such a case, your consent should be obtained separately before publication. Consent may not be required if the image includes numerous persons and it is not possible to identify them (for example, where a large public demonstration in which you have participated has been photographed).
Did the photographer use illicit means, for example, by secretly taking photos of you sunbathing in your garden? In such a case, the photos were not only taken without your knowledge and consent, but the level of intrusion into your private life has also been extended.
How well known is the person concerned and what is the context of the situation?
Can you be considered a newsworthy person? Have you entered the public sphere, to a certain extent, and been involved in a situation with a public character? In such situations, the level of protection for your private life is lower.
Intention for the photo’s use
If the photo was published, please continue with the following questions.
If the image was taken without an intention to publish it, the photographer’s plans for the future use of the picture should be balanced against your right to control the use of your image.
Contribution of the photo to a debate of general interest
Does the image refer to a situation or event which raises particular interest in society? The wider society has the right to be informed about situations and events of general interest, for example, political issues, crimes, catastrophes and public demonstrations. In these situations, your right to control the use of your image has to be balanced against society’s right to be informed.
Prior conduct of the person photographed
This criterion is only relevant if you have previously revealed private information and photos to the press. In such a case, you have showed your positive attitude towards having your private life discussed in the media and the level of protection of your private life is therefore lower. However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving a person of protection against the publication of a photo.
Content, form and consequences of the photo’s publication
Was the photo taken in specific circumstances, but published with information from another context, thus leading falsely to incorrect assumptions? Were you portrayed in an offensive way? Whether the publication of the image has damaged your honour, dignity and reputation should be examined, as defamation in the media is considered a criminal offence.
Has the publication caused you emotional distress or other kinds of harm? If so, your right to private life has been especially severely affected.
How popular is the newspaper or website in which the photo was published? A huge target audience means that the level of your privacy has been restricted to a greater extent.
Joint publication by the the EU Agency for Fundamental Rights and the Council of Europe