Every day, numerous pictures are posted, linked and shared on blogs and on social media. This can involve certain risks – both for the author and for the people depicted on them. We explain what to look out for when distributing images on the Internet.
The right to one’s own image
In Switzerland, the right to one’s own image is understood as part of the general personality right. This means that each person can in principle decide for themselves whether and in what context images of him or her are published. It is regulated in the first part of the Civil Code and in the Federal Act on Data Protection. A ruling by the Swiss Federal Supreme Court in 2010 stated that the right to one’s own image can be contractually regulated. Other rights, however, such as the right to physical integrity, are non-negotiable. Strict contractual provisions are made, for example, when working with models. A so-called Model Release regulates, among other things, the purpose of the photographs, compensation and copyright.
The dilemma of photographing in a public space
It only becomes problematic if no agreement is made between a person depicted and the photographer. This is often the case, for example, in street style photography. The point here is to photograph passers-by with a particularly individual look in unaffected everyday situations. The shots look especially natural when the subject does not even notice that they are being photographed. If they notice they are being photographed, the authenticity of the photo is often compromised. However, the photographer has the obligation to obtain consent if the person can be clearly identified as the central object of the photograph. Thus, photos should not be published without the consent of the person concerned, although it is a legal grey area and ultimately an individual decision.
No agreement is required, however, if the person is not the specific focus of the shot. No personal rights are violated if several people are photographed together, for example at public events or in crowded tourist locations. However, if a person stands out optically from the crowd, the photographer must obtain consent in order to obtain legal protection.
Unintentionally published on the Internet – What now?
Anyone who feels that their right to their own picture has been violated should first try to talk to the person who published the photo and ask them to remove it. If this doesn’t work, a consultation with a lawyer helps to clarify to what extent an interest worthy of protection can be asserted. In this case it has to be decided to what extent the photo can put the person on it in a bad light. It is also weighed whether the photo shows a public, private or even intimate area of life. It makes a difference whether a person is photographed on the street or in a private home.
In some situations, on the other hand, consent is tacitly assumed on the basis of gestures, facial expressions or occasion. This is the case, for example, when someone clearly poses in front of the camera or lines up for a group photo. Especially when dealing with social networks, it is advisable to read the general terms and conditions carefully. Facebook, for example, reserves the right to utilise the uploaded photos of its users according to its own interests.
Finally, a complaint is only recommended in the case of really serious violations. Litigation is often costly and lengthy. However, no one should feel encouraged to post defamatory photos of other people on the Internet. When dealing with social media, decency and respect should have top priority.
Copyright in Switzerland
Copyright covers the creator’s right to their individual intellectual work. In Switzerland, photographs must be marked in a certain way in order to signal copyright. This includes the copyright notice with the © symbol and the name of the copyright holder with the year of first publication. While in Germany, for example, almost every picture is protected by copyright, in Switzerland it is not so easy to claim it. The prerequisite here is that a work must be an intellectual creation. The photograph must have something unmistakably individual about it, such as a specific staging or a special photographic technique. Finding unambiguous criteria, however, is often problematic in jurisprudence.
Nevertheless, applicable copyright law must not be violated in Switzerland either. No one is allowed to download photos from Google at will in order to use them for their own blog or social media profile. The search engine protects itself legally by pointing out that the material may be protected.
Please note that this article is intended for informational purposes only and does not constitute legal advice in the strict sense. The content of this publication cannot and should not replace legal advice that addresses your specific situation. In this respect, all information provided is without guarantee of correctness and completeness.