One of the misunderstandings people from the English-speaking world have about European law concerns privacy and the right to control one’s own image.
The ‘Anglosphere’, let’s call it, has a very loose approach to whether you can photograph people who are out in public. First I’ll explain the Anglosphere approach, then look at the drastically different legal environment in Germany.
I. The Anglosphere: (Almost) Anything Goes
In most English-speaking countries, there’s a fairly simple rule: If you go outside your home into a public space, you can’t complain if you end up in someone’s picture or video. There may be some exceptions — if you’ve already told someone you don’t want to be photographed, or if you’re caught in a particularly embarrassing position.
But in the main, someone who is on public property can take your picture and do pretty much what they want with it. An Australian media-law website puts it bluntly:
There are no publicity or personality rights in Australia, and there is no right to privacy that protects a person’s image…. It is generally possible to take photographs in a public place without asking permission. This extends to taking photographs of buildings, sites and people. In a case involving street surveillance photography used as evidence in a criminal case, an Australian judge stated “a person, in our society, does not have a right not to be photographed.”
The UK has a similar basic approach:
If you’re on public property, you can take photos of whatever you like. Whether it’s property or people, you don’t need anyone’s permission. Some people are going to tell you that you can’t take photos of private property, such as bank buildings and people’s houses. So long as you are on public property, you can.
This means that you can take photos in public libraries, museums, government buildings, from the street and anywhere else public. The only case where you can’t take pictures is if there’s a specific law that prevents such shooting….
You don’t need a person’s consent to take their photo if they are in a public place. They do, however, have a reasonable right to privacy, so you can’t be intrusive if they’re in a private place, such as their own home.
And finally, the Art Law Journal summarizes American law on the subject:
Privacy is defined as “the state or condition of being free from being observed or disturbed by other people.” Obviously, it would be objectively unreasonable to expect privacy on a city street or on a crowded subway. So, when someone claims that anyone may take photographs of whatever they want when they are in a public place, another way of saying that the privacy right of a person doesn’t apply unless that person has a reasonable expectation of privacy. Put more directly, you have given up any expectation that you cannot be “observed or disturbed by other people” by virtue of entering a public space or being in a position where you can be seen by others in a public space. And that is why when in a public space, a street photographer can take a picture of anything he or she can see from that vantage point, even including subjects on private property, so long as they are within public view. For example, a photographer would be free to photograph a couple sitting on a restaurant patio, or even inside the restaurant through a window, so long as the photographer is on public property.
To sum up, if you’re in a public area, the default rule is that someone can take your picture and do what they please with it.
II. Germany — Your “Right to Your Own Image”
In Germany — as in many other European countries — every person has the “right to their own image”. These rights have deep roots in European legal consciousness. The basic rule in Germany is set out in a 1907 law called the Kunsturheberrechtsgesetz, roughly “Law on the Rights of Artistic Creators” (KUG). Section 22 (g) of that law reads:
Images may be disseminated or publicly displayed only with the consent of the person depicted. In doubtful cases, consent will be assumed to be given if the person depicted received compensation in return for allowing his image to be made. For a period of 10 years after the death of the person portrayed, publication requires the consent of the relatives of that person.
The law was largely a reaction to the scandal surrounding this unpleasant photo of Bismarck on his deathbed, which was taken in 1898:
Two photographers, Willy Wilcke and Max Christian Priester, bribed a servant to keep them informed of Bismarck’s condition, and (g) snuck into Bismarck’s room in the early morning hours after his death to take the photo. They then held an auction to sell the rights to the photo, attracting an offer of €30,000 Reichsmarks (about €210,000 in current money). The auction sparked massive controversy, and the photographers and servant were arrested two days after the auction. They were sentenced to brief prison terms, and the photos and negatives were seized and given to the Bismarck family. The photo itself was printed by a German newspaper only in 1952.
The scandal surrounding the Bismarck photo led to the creation of Section 22 of the KUG, which sets out the default rule requiring consent for all photos. Obviously, requiring consent of all people in all photographs would be unreasonable, so the legislature added Section 23 (g), which allows publication without consent under the following circumstances:
- Images relevant to current affairs (Zeitgeschichte);
- Images in which persons appear only as incidental aspects (Beiwerk) in a landscape or other image of a specific place;
- Pictures of gatherings, marches, and similar events in which the person took part;
- Images which were not commissioned, to the extent that the dissemination or public showing of the image serves a higher artistic interest.
These four exceptions obviously leave wide room for interpretation, and courts have issued thousands of decisions on each one. Some situations are pretty clear: if you film an announced, newsworthy public event, you can show images of the people who are the focus of the event without their consent. You also are likely permitted to film and show newsworthy accidents or crimes — but you would be wiser to pixelate or cover any identifiable people. Artists have a privilege to publish peoples’ images without their consent, so long as they are recognized “legitimate” artists and the images are part of their work.
What’s also clear is that if you make a video or take a picture under ordinary circumstances, such as a while walking around a city you’re visiting, and a person is clearly recognizable in that video or picture and forms a significant part of it, you will need consent. The fact that you took the picture of someone in a public park or square is irrelevant in Germany. Your right to control your image accompanies you at all times. This fact usually comes as a surprise to visitors from English-speaking countries.
But other questions under the law are much more unclear: what if someone is clearly recognizable, but most of the picture is of a castle in the background? If you can take pictures of participants in a protest match or sporting event without their consent, can you also take pictures of onlookers or counter-demonstrators (g)? Can you take advantage of the artistic license exception if you’re merely a passionate hobby photographer? These are just some of the questions raised by the law.
There are other pitfalls. If a gathering takes place in a private space, such as a football stadium or nightclub, the owner of the venue will require you to agree to general terms and conditions to enter, and one condition almost always requires you to get prior consent from the venue owner to publish any photos taken in the venue, since it’s not a “public” gathering. Even if you’re taking pictures of a completely public gathering, you cannot publish them if they depict a single person (g) rather than a large, undifferentiated mass of people.
In doubtful cases the courts will look at three weighing factors to help them decide; (1) does the picture implicate a person’s intimate or private sphere?; (2) does the image tend to damage the depicter person’s reputation or depict them in a negative or embarrassing light?; and (3) was the picture published for advertising or other profit-making purposes? These considerations are not all that different from those in the Anglosphere: if your picture shows someone in an embarrassing or compromising position (semi-nude, vomiting, etc.), it might be protected by privacy rights even in the USA or the UK. Another aspect that’s not all that different is children. You cannot publish a photo of children in Germany without the consent of the children’s parents and — if the child is above a certain age and can make decisions for themselves — the consent of the child.
Now when I use phrases like prohibited or allowed, this doesn’t mean you will inevitably be sued. For that to happen, the person you took a picture of must become aware that you took the photo and published it. Then they must contact a lawyer, and convince the lawyer to take the case. The lawyer will then usually send a demand letter ordering you to remove the picture, sign a declaration (Unterlassungserklärung) that you won’t publish it again, and pay the attorneys’ fees for preparing the letter, which are usually in the couple of hundred or thousand Euros. (These fees are invariably inflated and lack any legal foundation, never sign anything or pay the requested fees without consulting a lawyer first.) The KUG law even provides for criminal penalties, including prison for up to a year. However, prosecutors almost never prosecute people for crimes under this law, except for truly outrageous cases.
These strict privacy protections are controversial in Germany; many people think they impose absurd and unworkable requirements, especially in an age in which every adult carries a camera and video recorder around with them in their pocket. Photographers, artists, and reporters generally don’t like them because the laws impose onerous consent and reporting requirements. Yet courts tend to be fairly reasonable when asked to decide cases: if you just post a harmless photo of your friends at a concert on Facebook, and someone in the background recognizes themselves and sues you, a court will likely resent being asked to decide such a trivial case. Nevertheless, the German Federal Constitutional Court recently upheld a verdict for €5,000 (g) against a street photographer whose picture of a Berlin pedestrian was displayed prominently in an outdoor exhibition. The Court recognized the unique nature of street photography as an art form based on spontaneous, unpixelated pictures without prior consent, but still held that the personality rights of the person in the photo could trump artistic freedom.
The problem, however, is the uncertainty. Because there’s so much wiggle room and so many conflicting court decisions, it’s impossible to predict how a court might decide in many cases. To American lawyers, this is a classic case of an unconstitutional chilling effect: Because of the “fear, risk, and uncertainty” surrounding German privacy law, people will be deterred from engaging in many completely legitimate exercises of their rights. Even if you’re 95% convinced you have the right to publish a picture which contains someone’s image, you can never be sure. If they decide to sue, you may face months of wearisome demands and possibly even a trial. So you’ll decline to publish the picture. This happens thousands of times every day in Germany. So Germany’s respect for privacy does come at a cost. Whether that cost is worth paying will depend on how you balance privacy versus robust debate.
