By having one's picture taken for a group photo in a specific context, one does not automatically grant unlimited consent, both in terms of time and subject matter, for the subsequent use of the image in a different context. Rather, the permissibility of publishing a person's image must always be assessed within the framework of a balancing of interests pursuant to Section 78 of the Copyright Act, whereby the purpose and context of the original consent are particularly decisive. The Austrian Supreme Court (OGH) recently addressed this issue in a political context.
Several individuals ran together on the same list for an election in 2020. A group photo was taken in this context. The photo was clearly used for campaign advertising and to present the joint political list. The individuals depicted must therefore have expected that the image would be used in connection with this specific election campaign.
Two years later, the defendant reposted the group photo on Facebook. By this time, the original political constellation no longer existed, and the joint candidacy had long since ended. The individuals depicted no longer wished to be associated with this later publication and felt their personal rights had been violated. They argued that any prior consent had only applied to the 2020 election campaign and not to a new publication in 2022. The plaintiffs sought an injunction and publication of the judgment. The case thus directly concerned the scope of consent under Section 78 of the German Copyright Act (UrhG).
The Supreme Court clarified that the permissibility of publishing a portrait always requires a concrete balancing of interests pursuant to Section 78 of the Copyright Act. Any consent given must be interpreted in context and limited to the purpose for which it was recognizably granted. Therefore, consent to the use of a group photograph within the context of a specific election campaign does not automatically include subsequent publications in a changed political or social context. Each new use must be independently assessed against the standard of the legitimate interests of the person depicted.
This ruling demonstrates that consent is not a blank check. Anyone who uses photographs of individuals later in a new context needs a sound legal basis. Consequently, with each subsequent use of a person's image, it must be examined whether the original purpose of the consent still applies or whether the changed context constitutes an independent infringement of rights under Section 78 of the German Copyright Act (UrhG). In practice, this means that the intended use of photographs of individuals should be clearly documented and limited to the specific context in order to avoid later disputes about the scope of the consent. A brief written consent document prevents such disputes later on.
Supreme Court 26.03.2025, 6 Ob 49/25m