We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
from Part II - Case studies
Published online by Cambridge University Press: 06 July 2010
Case
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.
Discussions
Austria
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.
To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Find out more about the Kindle Personal Document Service.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.
To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.
