Photos and privacy
The right to your own image
Everyone has the right to their own image. This generally allows every person to decide whether and in what form an image of them may be created or distributed.
When are images subject to data protection law?
Photos are considered personal data as soon as someone in the picture is recognisable. This is true for group photos as well, although the breach of privacy is considered to be less severe if no one person is particularly prominent in the image or perceived as an individual. Each specific case must be evaluated independently to determine the extent to which this is the case. Breaches of privacy can only be ruled out when the people in the image cannot be identified, for example with very small prints of group photos or digital images at such low resolution that faces or other identifying characteristics are not visible.
Consent requirements
Before an image is published, consent must be obtained from the people shown in it unless an overriding public or private interest justifies publication. This interest must be assessed conservatively, however, especially in the case of images of individuals (e.g. when reporting on public events such as sporting events or concerts that are of particular significance, or in media reports in compliance with the journalistic duty of care). If there is any doubt, consent should be obtained.
This applies regardless of whether the photos are recent or were taken years ago. The right to privacy of the people concerned exists as long as they are alive and the right can be asserted at any time. When publishing an image from archives, the identity of the individuals in the image must be established in advance and their consent obtained. Consent does not need to be obtained when photos are taken openly in public spaces, and if the people in the image are not the main focus, e.g. passers-by at a tourist attraction. In these cases, it is sufficient if an image is deleted at the request of the person(s) photographed (the request can be made immediately or at any later time) or if the photograph is not subsequently published. In this case, the people concerned do not have to be contacted and provided with further information.
Legally valid consent
In order to be valid, consent must be given voluntarily based on adequate information. Adequacy is judged differently for the publication of a group photo or the image of an individual.
For group photos it is sufficient to inform those pictured that the photo will be taken and published, including information on how it will be published (online, print media, advertising flyer etc.). The photo cannot be published if someone appearing in the photo objects to its publication.
Other rules apply to creating and publishing images of individuals; the general consent required for a group photo is insufficient. The person photographed must have the opportunity to view any photos intended for publication, and they must be informed about the context in which they will be published. While someone may be likely to consent to the publication of a flattering photograph taken as part of a report on holiday camps, this may not be the case when a photo is unflattering or even compromising, or when someone is photographed in a context related to sensitive topics (e.g. to illustrate a story on leisure programmes for ‘troubled teens’).
Copyright of photos is a separate issue
Data protection does not include the protection of the photographs themselves as artistic or commercial works under copyright. More information about copyright is available from the Swiss Federal Institute of Intellectual Property (IPI).
Tips for people who appear in photos
- Check who has access to any photos that you publish online. Keep in mind how difficult it is to control what happens to an image once it has been made generally accessible. Under Article 30 of the Data Protection Act, there is no breach of privacy if you have made a photo generally accessible without expressly stating that it is prohibited to process it.
- You can assert your right to have photos deleted by the photographer and removed from all relevant platforms if the photos have been published without consent or an overriding public or private interest (right to object). You can pursue your complaint in a civil court if necessary. You may withdraw your consent at any time, after which point the photo must no longer be published. It is important to note, however, that you may be held (partially) responsible if this causes damages of some kind (e.g. advertising brochures have already been printed but now can no longer be used).
- If someone publishes intimate photos that were taken without your consent, they may be liable to a penalty under Article 179quater of the Swiss Criminal Code. Using intimate photos to threaten or blackmail someone is known as sextortion. More information is available online from the NCSC and Swiss Crime Prevention (de, fr, it).
Tips for photographers
- Request permission from the people in a photograph before taking or publishing it. When using a photo for commercial purposes, consent should be obtained in writing using a form that clearly states how the photo will be used (online, print media, advertising flyers etc.). Photos must not be used unless the subject provides their consent.
- The individual subject of a photo must have the opportunity to see the photo before publication. They must also be informed of the context in which the photo will be published. Parents or guardians must also give their consent before a photo of a minor is published.
- You can be taken to court for unlawfully publishing a photo. The person in the photo can request that it be removed and/or deleted, and they can also petition the court for compensation for financial loss and/or for pain and suffering. You may also be liable for court costs and the costs of the complainant (in particular legal fees).
- The need to destroy material that has already been printed, such as brochures or flyers, may also result in additional costs.
Last modification 29.08.2024