According to a recent decision by the Supreme Court, the mere photographing of a person in an area accessible to the public without their consent, even without the intention to distribute (!), should be unlawful.
In principle, the right to one’s own image is regulated in Section 78 UrhG. Accordingly, such images may not be publicly exhibited or distributed in any other way if the legitimate interests of the person depicted, or in the event of their death, those of their close relatives, are impaired. The central point around which this standard revolves is therefore the improper distribution of the images and the protection of the person depicted from the exposure associated with this very distribution.
In the above-mentioned supreme court decision (6 Ob 256/12h), however, the Supreme Court does not refer to Section 78 UrhG, but relies on the general right of personality under Section 16 ABGB. This is said to be impaired by the mere photographing of a person without their consent, even if the photograph was taken in an area that is accessible to the public and there is also no intention of dissemination on the part of the person taking the photograph.
Of course, in the opinion of the Supreme Court, the assessment is based on a comprehensive weighing of interests and interests, whereby it is of course important to consider how clearly the person depicted is recognizable in the photo. In addition, it must also be considered whether the photograph was taken merely by chance or whether it was taken deliberately, giving the person photographed a feeling of being under surveillance.
The case was as follows: At the beginning of a hearing, one party took a digital photo of the participants. Among them was the lawyer of that party’s opponent, who, when asked for the purpose of the photo, only received the answer “for amusement”. The party subsequently refused to comply with the lawyer’s request to delete the photo.
In contrast to the previous instances, the Supreme Court upheld the action for injunctive relief against the production of the photos in which he is depicted