Unauthorized image capture
Definition and significance
The term Unauthorized image capture describes, in a legal context, the unlawful creation or transmission of images of persons without their consent. The primary focus here is on the protection of general personality rights, the right to one’s own image, and the preservation of privacy. Unauthorized image captures can affect both private and professional spheres and are regulated by various provisions in criminal and civil law.
Legal foundations in Germany
Criminal law provisions
The creation of unauthorized image captures is, under certain circumstances, a criminal offense under German law. At the center of this is Section 201a of the German Criminal Code (StGB).
Section 201a StGB – Violation of the highly personal sphere of life by means of image captures
According to Section 201a StGB, any person who, without authorization, creates or transmits images of another person when that person is in a dwelling or another space specially protected from view, is subject to penalty. The provision protects the intimate and highly personal sphere of life.Elements of the offense:
- Creation or transmission (including storage, forwarding, use)
- Image capture of another person
- Without their consent
- In a dwelling or a specially protected space (e.g., bathroom, changing room)
- Extension: The distribution and making accessible of such images is also punishable.
Sanctions: Section 201a StGB provides for a monetary fine or imprisonment for up to two years.
Civil law claims
In addition to criminal law, unauthorized image captures may also give rise to civil law claims. The relevant provisions are found in the Copyright Act for Works of Art and Photography (KUG), in particular Sections 22 and 23 KUG, as well as the general right of personality defined in Art. 1 para. 1, Art. 2 para. 1 Basic Law (GG).
Right to one’s own image pursuant to Section 22 KUG
The publication of a person’s likeness is generally only permissible with their consent. Publication or use without consent is considered unauthorized and may have legal consequences.
Exceptions under Section 23 KUG
No consent is required for images relating to current events, images in which persons merely appear as accessories next to a landscape or other location, and images of assemblies, demonstrations, and similar events.
Possible civil law claims
- Injunction: If a violation is imminent or ongoing, an injunction can be sought (e.g., by temporary restraining order).
- Removal: Right to deletion of the unauthorized image.
- Damages: If a personal right has been culpably violated, compensation for damages incurred may be claimed.
- Compensation for pain and suffering: In particularly serious infringements, such as in the case of intimate images.
Practical examples and relevance
Unauthorized image capture in the workplace
Secretly filming or photographing colleagues or customers without their consent can have criminal and civil law consequences. Companies are obligated to protect the personal rights of employees and may only take images with explicit consent.
Public environment
Image capturing is only permitted in public spaces under certain circumstances. Photographing individual persons generally requires their consent, unless the photo falls under one of the exceptions in Section 23 KUG (e.g., images taken at public events).
Digital communication and social media
Unauthorized creation, distribution, or sharing of images via messenger services and social networks is also punishable, provided the image was unlawfully made.
Distinction from permissible image captures
Not every image capture is unlawful. Permitted are:
- Images taken with the consent of the person depicted
- Images of crowds at public events
- Images that focus primarily on a landscape or location, with persons appearing only as incidental
It is always essential to balance the public’s interest in information with the personality rights of the person depicted.
Legal consequences and sanctions
Criminal sanctions
Anyone who creates, distributes, or makes accessible an unauthorized image capture faces criminal prosecution under Section 201a StGB. The severity of the penalty depends on the circumstances of the individual case.
Civil law claims
Affected persons may take action against responsible parties through preliminary injunctions, claims for injunctive relief and removal, and by seeking damages and/or compensation for pain and suffering. They are also entitled to deletion and, where applicable, surrender of the images.
Data protection aspects
Under the General Data Protection Regulation (GDPR), the processing of personal data – which includes image and video captures – is generally only permissible if consent is given or another legal basis applies. Violations may result in fines and further regulatory measures.
International regulations
Comparable laws to protect personality rights in relation to image captures exist outside Germany as well. In many countries, the unauthorized photographing or filming of persons constitutes a criminal or civil offense. However, the specific provisions may differ regarding the requirements and legal consequences.
Conclusion
Die unauthorized image capture is a term regulated by various legal provisions, serving in particular the protection of personality rights and privacy. The legal basis is found in criminal and civil law, supplemented by data protection regulations. Observance of these rules is crucial in both private and professional contexts to avoid violations of the law and resulting sanctions.
Frequently asked questions
What legal consequences can arise from unauthorized image captures?
An unauthorized image capture generally constitutes a violation of general personality rights, especially the right to one’s own image (Section 22 KunstUrhG), under German law. Depending on the circumstances, this may result in civil as well as criminal liability. Civil claims available to the affected person include an injunction (Section 1004 BGB analogously in conjunction with Section 823 para. 1 BGB) and a claim for damages (Section 823 para. 2 BGB in conjunction with Sections 22, 33 KunstUrhG). There may also be claims for monetary compensation, particularly in cases of grave personality rights infringements. Criminal liability is based on Section 201a StGB (“Violation of the highly personal sphere of life by means of image captures”), which provides for fines in minor cases, and imprisonment of up to two years in more serious cases. There may also be further costs, such as litigation expenses and costs for counterstatements or warnings. In the event of repeat offenses, higher penalties and damage claims may follow.
When does an image capture constitute a violation of rights?
An image capture is legally impermissible and constitutes a violation if it takes place without the consent of the affected person and no statutory justification exists. It is decisive whether the image was taken in a private, non-public space, especially if the highly personal life sphere is involved, as with images taken in dwellings, changing rooms, or toilets. Even in public, image captures can be illegal, for example if the person depicted is justifiably impaired by the nature of the image, such as in compromising situations or by covert recording. The publication, dissemination, or any other use of such images regularly aggravates the violation. Illegality is only ruled out if the law provides for an exception, such as for images from the field of contemporary history (Section 23 KunstUrhG).
In which cases is an image capture permissible without consent?
The right to one’s own image is not absolute. Section 23 (1) of the KunstUrhG provides four categories in which consent can exceptionally be dispensed with: 1) for images relating to contemporary history where there is a legitimate public interest in reporting, 2) for images where the person only appears as an accessory next to a landscape or other location, 3) for images of assemblies, demonstrations, and similar events in which the person depicted has participated, and 4) portraits not commissioned and serving a higher artistic interest. Exceptions may also apply in cases of self-defense or emergency (e.g., securing evidence of crimes). However, each exception must be interpreted restrictively and subjected to comprehensive balancing of interests.
How can an affected person defend themselves against unauthorized image capture?
Affected persons have various legal options to defend themselves against unauthorized images. Initially, out-of-court intervention is possible, for example via a lawyer’s warning requesting an injunction, deletion, and possibly damages. If such a request is not complied with, a court can issue a temporary injunction. A criminal investigation under Section 201a StGB can also be initiated. In serious cases, claims for monetary compensation, injunction, and removal can be brought before the competent civil court. Technical and organizational measures, such as reporting unlawful content to platform operators, can also be helpful.
Who bears the burden of proof in disputes about unauthorized images?
In civil proceedings, the party asserting a fact generally bears the burden of proof. In the case of unauthorized image captures, the person depicted must present and prove that an image was made without their consent and that no exception applies. The photographer or user must, in turn, credibly demonstrate that the necessary consent was obtained or that a statutory exception exists. The claimant is also responsible for proving that the person is identifiable in the image. Proof is often provided by presenting the disputed image, witness statements, or digital metadata.
When do claims based on unauthorized image captures become time-barred?
Claims arising from unauthorized image captures are subject to different limitation periods, depending on the type of claim. The limitation period for claims for injunctive relief and removal is generally three years, according to Section 195 BGB, starting from the end of the year in which the claim arose and the person affected became aware, or should have become aware without gross negligence, of the violation and the identity of the violator (Section 199 BGB). Claims for damages are generally subject to a three-year limitation period as well, but if the violation continues (e.g., ongoing publication), the period begins when the infringement ends. Criminal claims under Section 201a StGB generally become time-barred after three years (Section 78 (3) no. 5 StGB), but this may differ in individual cases.
