Is taking and using your image proportionate?
Competing interests
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 must be found. There have to be sufficient arguments why the interests of others outweighed your rights and the other way around in the particular case.
Balancing process
The following aspects should be assessed within the balancing process:
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 not, was it possible to obtain your consent to being photographed? Even if you have consented to the taking of a picture, it does not automatically mean that you have agreed to its publication. In such a case, your consent to the intended publication should be obtained separately.
Did the photographer use illicit means, for example, secretly taking photos of you sunbathing in your garden? In such a case, the photos have not only been 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?
Are you considered a public person? Were you photographed in a public place? In such situations, the level of protection of your private life is lower.
Intention for the photo’s use
If the photo was published, please continue to the next 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 within society? Society has the right to be informed about situations and events of general interest, for example, political issues, crimes, catastrophes or 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.
A distinction nevertheless needs to be made between reporting important facts about a specific issue and reporting the details of your private life. The activities of a public person may be of a purely private character, despite the fact that he or she is publicly known and even if the person has appeared in public places, for example, walking on the street or leaving a restaurant.
If the purpose of the image’s publication is the mere satisfaction of readers’ curiosity about the details of a public person’s private life, this action does not contribute to any debate of general interest to society.
Prior conduct of the person photographed
Have you previously revealed private information and photos to the press? In such a case, you have showed a positive attitude towards having your private life discussed in the media and thus the level of protection of your private life is lower. However, the mere fact of having cooperated with the press on previous occasions cannot serve as an argument for depriving a person 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 along with information in another context, thus falsely leading to incorrect assumptions? Were you portrayed in an offensive way? If so, 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.