Can someone use my picture without permission

What is the right to one's own image?

Under the "Right to your own picture" you understand your right to the fact that a photo or video of you (i.e. an image) may only be published or distributed under certain conditions. The so-called "image protection" is intended to protect you from negative effects caused by the publication and distribution of your image (photo, video). However, there are no clear, fixed rules in which individual cases the publication and distribution of your image is permitted and in which it is not. Rather, it depends on one Weighing of interests in a specific individual case at. On the one hand, the interests of the person who publishes or disseminates the picture and, on the other hand, your interests in protecting your privacy are compared.

The requirement of such a balancing of interests arises from § 78 Copyright Act (the central legal regulation on the right to one's own picture) and Art 6 Paragraph 1 lit f of the General Data Protection Regulation (GDPR), because the publication of a person's picture usually also includes a Data processing (i.e. processing of personal data). Because a digital photo is made up of a large number of data, which together make a person recognizable and therefore represent “personal data” (6 Ob 150 / 19f).

In the Jurisprudence the courts have turned certain guidelines formed, in which cases by one The interests of the person depicted predominate or the impairment of "legitimate interests" within the meaning of Section 78 of the Copyright Act is to be assumed:

  • You are exposed in a picture (e.g. posting a nude photo or an embarrassing photo);
  • Your private life is revealed to the public (e.g. a photo of you visiting a relevant adult club);
  • the picture can give rise to misinterpretations (e.g. you are shown in a photo as a supposed part of a group, although you only happened to be there and deeply reject the values ​​and views of this group);
  • the image is degrading or disparaging (e.g. a video of a person in a state of being drunk);
  • a picture of you is used for advertising purposes without your consent;
  • Your picture will be published with ambiguous or negative accompanying text (e.g. "This man is going to cheat on you").

However, your legitimate interests will not be violated if you have given your consent to the publication of your portrait.

According to data protection law, the person who publishes your picture should also be able to rely on their own interests in the publication of the photo. The Publication of the picture so should for a recognized purpose (e.g. to document an event, in the context of the exercise of a professional activity, for evidence purposes, etc.) - and not for mere amusement. However, if a photo is published in a purely private setting, the data protection regulations are not to be observed. With the so-called “Household Exemption”, data processing in the context of purely personal or family activities is excluded from the scope of the General Data Protection Regulation (GDPR).