Only under certain conditions. Pursuant to the law, every publication of photographs of people is unlawful (Art. 28 SCC, Art. 13 FADP), except when one of the following three exceptions exists:
- the photographed person has given their consent to the image;
- there is a legal justification for the image, or
- there is an overriding private or public interest in the image. Public interest can only be determined by weighing up the interests at stake. In the process, the mutual interests are contrasted – on the one side, the interest of the photographed person in protecting their personality and their right to determine themselves when and where they are pictured, and on the other hand, the interest of the public in their person. These two interests must be weighed up against each other.
The weighing up of interests plays a big part in practice. In this case, it is necessary to ask how important the person is for the public. The more important the person is for the public, the less of a requirement there is to gain their consent. Here you can take note of the following:
- If they are extremely important people of contemporary history (i.e. people who work entirely in the public arena, e.g. the pope, the president of the USA, world-renowned artists and musicians, etc.), you are permitted to publish photographs of them without their consent.
- If they are public people (of contemporary history) who are only the focus of public attention for a limited time, their photographs may also be published during the period of their fame without consent.
- If they are “normal”, non-public people (e.g. the neighbour, an employee, a pedestrian, etc.), then their consent is always required
However, if in doubt, it is always advisable to obtain consent.
When publishing photographs, the copyright of the photographer must always also be considered.