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  • Print publication year: 2010
  • Online publication date: July 2010

10 - Case 7: A snapshot of a person

from Part II - Case studies



Sally took a snapshot of person X in a market place without asking this person's permission. Does X have a claim against Sally? Does it make a difference, if:

(a) X is famous or not;

(b) X is at work/is attending to his private affairs;

(c) the picture is published or not.



Operative rules

X is not granted a claim in both situations (a) and (b). If, as suggested under hypothesis (c), the picture is published, X only has a claim for forbearance, publication of the judgment, abatement and restitution of both pecuniary and non-pecuniary loss under certain circumstances. A claim of unjust enrichment, however, appears highly improbable.

Descriptive formants

With regard to situation (a), it appears rather unlikely that X has any remedy against the mere taking of the picture irrespective of whether he is famous or not. The present case deals with the protection of privacy which can, in principle, be realised through the right to image according to § 78 UrhG (Urheberechtsgesetz, Copyright Act). However, this provision only awards a claim if the picture is published; the mere taking of the picture is not sufficient to merit a claim.

Other provisions aimed at preventing the violation of privacy which could be applicable are § 1328a ABGB and § 16 ABGB, together with Art. 8 ECHR.