Unlike public persons, private individuals usually don’t act in a public context and are not of public interest. Therefore, they can expect that their privacy will be respected.
Private sphere
You, as a private individual, have the right to refuse your image being recorded in private settings and you enjoy a high level of protection of privacy. For example, it would be very hard to justify the secret taking of a photo of you at your home.
Public sphere
Being a private individual does not exclude the possibility that you may enter the public sphere and become of public interest. In such situations, the level of protection of your privacy may be lower. For example, you may be closely related to a public person and thus also become of interest to society. Or, you may become a newsworthy person due to a specific situation in which you have been involved such as taking part in a public demonstration.
Right to private life vs. freedom of expression
In situations concerning public interest, a person who photographs private individuals and publishes their images, exercises his or her freedom of expression and achieving the legitimate aim of informing society about situations of public interest and promoting discussion. However, the use of an image has to be lawful even in these cases.
Has your image been used lawfully?
See the questions below to evaluate whether your image has been used lawfully and whether your privacy has been sufficiently respected. If, in your situation, your answer to one of these questions is negative, your privacy may have been violated. In such a case, you have the right to complain. Read more about how to complain.
The use of your image should have a basis in law. For example according to the Identity Documents Act your image can be taken and used for the purposes of issuing an official identity document. In addition, as stipulated in the Personal Data Protection Act, the media are entitled to publish information of general interest, including photos of individuals, if these images could promote discussion on important issues in society.
If the use of your image is not permitted by law, your right to privacy may be violated. There is no need then to examine the other questions.
The use of your image has to be aimed at the protection of other legitimate interests. These legitimate interests may, for example, be:
- your identification for state institutions and private entities
- press and media freedom
- other persons’ right to information
- freedom of art
- prevention, investigation and prosecution of crime etc.
If the use of your photo does not serve a legitimate aim, the action taken is not legal and your right to private life may be violated. There is no need to examine the necessity and proportionality of the use of your image.
The use of your image should be necessary and suitable for the achievement of the legitimate aim. The information gathered has to be important and relevant to achieve the aim of the use of image. Additionally, no other alternative and less restrictive methods should be available to achieve the legitimate aim. For example, was it possible to inform society, but protect your private life, by publishing a report without the image?
Both competing interests – your right to control the use of your image and the legitimate interests of the state or other persons - have to be balanced against each other, and a fair balance must be found. There have to be sufficient arguments why the interests of others outweighed your rights and the other way around, in the particular case.
Various aspects should be assessed within the balancing process. Read more about proportionality below.