Right to your own picture (Austria)
The right to one's own image in Austria , here also specifically called image protection , is regulated in Section 78 of the Copyright Act (UrhG) .
regulation
Paragraph 1 of the Copyright Act states: “Images of persons may neither be exhibited publicly nor distributed in any other way by which they are made available to the public if this permitted or ordered the legitimate interests of the person depicted or, if he has died, without publication to have a close relative would be injured. ”According to recent case law, however, the production of a portrait alone can be an inadmissible interference with the personal rights of the person concerned.
The portrait right is an expression of the personality right standardized in § 16 ABGB and is supplemented by the - analogously applicable - provision on naming rights according to § 43 ABGB:
"The protection of a portrait is a personal right in the sense of § 16 ABGB. § 78 UrhG protects ideal and material interests; the latter, however, only if the violation of ideal interests also affects material interests. "
It should be noted that it is generally neither forbidden to create a picture of a person without their consent, nor to distribute or publish it. The protection of minors under criminal law can be found in Section 207a of the Austrian Criminal Code . In addition, the constitutionally anchored general protection of privacy as well as data protection regulations apply .
Furthermore, the term portrait is to be interpreted comprehensively, it includes photos as well as paintings or caricatures: “A portrait exists when the representation is intended and suitable to show the viewer a person in their life-like appearance and that To reproduce the appearance in the picture, whereby it is usually the facial features that distinguish a person from his fellow men and make them recognizable for the viewer. "
Only in the event of a (feared) violation of interests worthy of protection does the person depicted have civil law claims for injunctive relief (§ 81 UrhG), removal (§ 82 UrhG), publication of the judgment (§ 85 UrhG) and possibly compensation and surrender of the profit (§ 87 UrhG) against the publisher . In the event of an image controversy or presumption, there is also a legal right to cease and desist if, for example, a person's picture is titled with a different name ( image presumption ) . The claims arising from the image protection right can be secured by an injunction . Interests worthy of protection according to § 78 UrhG z. B. in the case of intrusion into the private sphere, or in the case of degrading portrayals of the person (e.g. nude photos), even if only in connection with the associated text. There is a differentiated judicature as to when legitimate interests are violated and when not. According to this, the person depicted is to be protected from being exposed by disseminating his portrait, his private life being disclosed to the public or his portrait being used in a way that can give rise to misinterpretation or is degrading or degrading (3 Ob 443/55 = SZ 28 / 205). If images are used for advertising without authorization, this violates the legitimate interests of Section 78 UrhG (4 Ob 100/94).
literature
- Katrin Neukamm: Protection of portraits in Europe. At the same time a contribution to the importance of the constitutional traditions of the EU member states and the ECHR for the interpretation of the Union's fundamental rights. Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12587-6 (also dissertation, University of Münster 2006/2007).
- Gumprecht, Ingrid: Kindergarten Law in Austria (2017, Carl Link Verlag) contains a chapter on the publication of photos of children.
Web links
- Protection of personality (right to one's own picture, § 78 UrhG / Austria) , on internet4jurists.at - Explanation of copyright in Austria with an extensive collection of judgments of the Supreme Court
Individual evidence
- ↑ Supreme Court: OGH of February 27, 2013, 6 Ob 256 / 12h
- ^ OGH legal rule RIS
- ↑ a b Supreme Court: OGH of November 7, 2007, 6Ob57 / 06k; 4Ob51 / 12x; 6Ob256 / 12h; 3Ob197 / 13m; 4Ob203 / 13a RIS
- ↑ cf. Clemens Thiele: Unauthorized image capture and its distribution on the Internet - Does Austria need its own paparazzi paragraph? in RZ 1/2007, pp. 2–17 ( article, pdf , on eurolawyer.at).
- ↑ Protection of portraits. On Rechtsprobleme.at, accessed on July 18, 2015.
- ↑ Gerstenberg, in Schricker: Copyright Comment , Rn 4 to § 22 KUG / § 60 UrhG; quoted from Bildnisschutz. On Rechtsprobleme.at.
- ^ OGH legal rule RIS
