An Austrian perspective on image rights
Austrian laws protecting a person’s image date back to 1936. The provision gives protection to a person depicted in a photograph or an image¹. The right is closely linked to the right to privacy enshrined in Article 8 of the European Convention for the Protection of Human Rights (ECHR). Despite the relevant Austrian regulation having been around for so many years, there still continue to be tensions between preventing the reproduction of an individual’s image and the press’ freedom of expression, as enshrined in Article 10 of the ECHR.
Austria has seen an increase in individuals (particularly public figures and celebrities) relying on the right to try to prevent the public reporting on what they deem to be private matters. However, due to the proliferation of social media, it is not only famous people who find the need to rely on the right but also ordinary people who find their images published on the internet.
As the English courts do, the Austrian Supreme Court (Oberster Gerichtshof) will carefully weigh up an individual’s right to respect private and family life on the one hand and the publisher’s freedom of expression on the other. When considering the public interest in material being published, Austrian courts differentiate between publication of photographs and articles which simply serve to satisfy the “nosy public” and those which add to a debate on a matter of general public concern. Where the subject is more gossip than one of public interest, the Courts are more likely to restrict a publisher’s freedom of expression. However, a pictorial feature about proven true facts will generally be found to be acceptable, even if it is adverse, compromising or degrading for the person concerned.
When it comes to issues of celebrity endorsement, the Austrian Courts still apply a well-known case from the last decade regarding a collectors’ book for football cards. In that case, the, claimant (the company which produced the books), concluded a contract with thirty famous football players concerning the exclusive image rights for portraits and group photographs. The players granted the company the right to use their images for the books. The name of the players and teams were printed within the books and the pictures were sold separately in small collector packs. One of the defendants started to produce his own books with matching football cards. He used the photographs without the players’ consent.
The Austrian Supreme Court found that the defendant’s product did not infringe the football players’ image rights. In coming to this decision, the Court looked at the use the players’ images was being put to. It found that the pictures were not being used for promotional purposes i.e. to promote the defendant’s books, but for the purposes of being collected by football supporters. Supporters would collect the cards due to the players’ popularity and fan loyalty, rather than because they thought the players endorsed the product. When the footballers agreed to be photographed, it was for the purpose of their supporters collecting cards with their images. They could not then rely on image rights to prevent those images being published, albeit by a different party from the one with which they contracted. Surprisingly, this was not a case of product endorsement. Had the court seen it as a case of endorsement, the result could well have been different.
As an aside, while the football players were unable to prevent their images being used by the defendant, they were able to claim the profits gained by him with the aid of Austrian civil law. While this was a case where freedom of expression took precedence over image rights, the cases do not always go this way.
A more recent and restrictive verdict concerned a picture of a professional bodybuilder that was published in a newspaper alongside an article about doping. Although his face was blurred and was unrecognisable, the Supreme Court held that a person’s face did not necessarily need to be shown clearly to infringe his or her image rights. It is sufficient that the person shown on that picture can be recognised, and as a professional bodybuilder, the claimant was regularly recognised by his body rather than his face. The body builder was able to rely on his Austrian image right in seeking redress.
As in the UK, the key tools for an individual who objects to his image being used are (a) an image right in some ways akin to a privacy right which will always have to be balanced against freedom of expression; and (b) a right to prevent unlicensed product endorsement. However, we have seen that the Austrian courts may well be less willing to make a finding of product endorsement than the English courts.
Andreas Schütz looks at image rights from an Austrian perspective, illustrating that foreign courts may well be less willing to make findings of product endorsement.
"As we know, everyone with a little technical know-how can publish, copy, broadcast, adapt or provide content online nowadays."