Right of personality and data protection in the event of photos

To consider

Besides the copyright protection which protects the rights of the photographer or the photographs, photographs of people are subject to the right to one’s own image as a partial aspect of the protection of legal personality Art. 28 Swiss Civil Code (SCC) and the Federal Act on Data Protection (FADP) (Art. 3 et seq. FADP or Art. 12 FADP or corresponding provisions in the cantonal data protection regulations, e.g. Kanton Basel-Stadt §3 et seq. IDG or. §9 IDG).

As a result of the right to one’s own image (Art. 28 SCC), the right of the depicted person to self-determination is protected (i.e. their right to determine how and where their image should be published and distributed). An infringement of the right to one’s own image is only considered to exist when the affected persons recognise themselves in the image (subjective recognition) and others can recognise them (objective recognition). Every infringement of the right to one’s own image is basically unlawful; the person whose rights are infringed can defend themselves with various claims (claim for an injunction, claim for a declaration of their rights, claim for cessation, claim for remuneration and claim for satisfaction Art. 28a SCC).

However, the law recognises three conditions in which there are no infringements (Art. 28 para. 2 SCC):

  1. when the person depicted explicitly or tacitly consents to the use of their image in a specific case,
  2. when there is an overriding private or public interest, or
  3. when there is a legal justification, i.e. it is laid down in a law that a corresponding use of an image is legal.

Personality rights basically end with the death of the person depicted and are neither transferable nor inheritable, i.e. with the death of the photographed person, their right to their own image is lost. However, the question of whether the right of personality has to be extended beyond death is arising more frequently in connection with the increasing commercialisation and attention paid to famous people, similar to the copyright protection deadlines. Only the right of the relatives of the deceased person to their memory, i.e. memory conservation, has been recognised to date. This includes the protection of the sensibilities of the relatives when they are offended by the publication or distribution of images of the body or also through the distortion of the image of the living person. (cf. Büchler, Die Kommerzialisierung Verstorbener, in AJP, 2003 p. 9 et seq.)

The right to one’s own image is extended and specified more precisely by the protection from unlawful processing of personal data pursuant to data protection law. Personal data includes all information which relates to an identified or identifiable person (Art. 3 (a) FADP); this also includes photographs of people. Pursuant to the Federal Act on Data Protection, all processing of personal data (collecting, archiving, using, reworking, notifying, destroying, etc.) which is done against the will of the affected party is illegal and may only take place when there is a justification for doing so. The justifications in federal data protection (Art. 13 FADP) correspond to those under personality protection.