The protection of personal rights across borders
A photograph captures a moment. It tells stories, documents history and preserves memories. Yet every image in which a person is recognisable touches not only on art or photography – but also on a fundamental personal right: the right to one’s own image.
Unlike copyright, which protects the creator of a work, the right to one’s own image protects the person depicted. It is intended to ensure that every individual can, in principle, decide for themselves whether and in what context their image is published or distributed. In this respect, the author’s right of publication is restricted in favour of the personality right of the person depicted.
The historical roots
The idea that people should be able to determine the use of their own image only developed with the technical advances of the 19th century. Before the invention of photography, portraits were labour-intensive and expensive. With the camera, however, people could suddenly be photographed with little effort and their images published in newspapers or on postcards.
In Switzerland, this right to one’s own image could already be derived from the Federal Constitution of 1848. However, a significant milestone was the year 1890, when the American legal scholars Samuel D. Warren and Louis D. Brandeis published their groundbreaking essay The Right to Privacy. They argued that every person has a right to be protected from unwanted public portrayal. Their work is still regarded today as one of the cornerstones of modern protection of personal rights.
In Germany, this legislation was accelerated by the death of Bismarck. At the time, two journalists forced their way into Bismarck’s deathbed room and photographed him on his deathbed. In Europe, the right to one’s own image continued to develop, particularly at the beginning of the 20th century. In many countries, laws were enacted that no longer protected merely property or honour, but explicitly also a person’s likeness.
The right to one’s own image as a right of personality
Today, the right to one’s own image is recognised in many countries by law or through case law. Although the specific details vary from country to country, the basic principle is virtually the same everywhere:
Every person has the fundamental right to decide whether their image may be photographed, published or otherwise used.
This right of protection serves not only to safeguard privacy; it also protects a person’s dignity, identity and self-determination.
International significance
There is no uniform global law governing the right to one’s own image. Nevertheless, the protection of personality rights is underpinned internationally by numerous legal systems and international human rights treaties.
Of particular importance in this regard are:
Article 12 of the Universal Declaration of Human Rights (1948), which protects every person from arbitrary interference with their private life.
Article 17 of the International Covenant on Civil and Political Rights, which guarantees comparable protection.
Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life and is invoked by the courts of many European states as the basis for the protection of one’s own image.
As a result of these provisions, the right to one’s own image is now recognised in many parts of the world as an integral part of the general protection of personal rights.
Consent as a principle
Internationally, the same principle largely applies:
A recognisable person should, as a general rule, give their consent before their image is published.
Consent may be given expressly or – depending on national law – tacitly. In many countries, particularly strict requirements apply to commercial use, such as in advertising or product campaigns.
Exceptions
Virtually all legal systems recognise exceptions to the requirement for consent. These include, for example:
- public figures in reporting of public interest,
- images from public events,
- people who appear merely as part of a landscape or a larger crowd,
- journalistic reporting, provided it is in the public interest and personal rights are given due consideration.
However, the scope of these exceptions varies considerably from one country to another.
The digital age
With social media and artificial intelligence, the right to one’s own image has taken on a new dimension. Images can be disseminated worldwide, altered or taken out of their original context within a matter of seconds.
This is precisely why the consent of the person depicted is becoming increasingly important. Once something has been published on the internet, it is often almost impossible to remove it completely. Digital images involve the transmission of additional data, which is why data protection also comes into play here. Images taken on smartphones, in particular, are especially wasteful with data. However, our professional digital cameras are also catching up in this respect. Meanwhile, this data efficiency has long since disappeared from consumer cameras.
For photographers, this entails a special responsibility. Good photography thrives not only on technology and creativity, but also on respect for the people in front of the camera.
The interplay with copyright
The right to one’s own image and copyright pursue different objectives.
Copyright protects the photographer as the creator of the image. The right to one’s own image protects the person depicted.
Therefore, both rights can co-exist. A photographer generally holds the copyright to their photograph, but may not publish it without restriction if doing so infringes the rights of the person depicted. Conversely, the person photographed may not reproduce or publish the image at will if this infringes the photographer’s copyright. Copyright and the right to one’s own image are both personal rights; they are therefore absolute and remain in force for 75 years after the death of the author or the person depicted.
Conclusion
The right to one’s own image is an expression of a universal principle: every person should be able to decide for themselves how their image is used. Even though legal provisions vary around the world, the protection of personality rights is now a recognised component of modern constitutional states and international human rights standards.
Anyone who takes photographs therefore bears responsibility not only for the quality of their images, but also for treating the people depicted in them with respect. Good photography combines artistic freedom with legal awareness – and it is precisely this balance that forms the basis of a responsible approach to images.
