If you are suspected of having committed or been convicted of a crime, or otherwise involved in criminal proceedings, you may feel particularly vulnerable if your personal data is being collected, processed and disclosed to others. This also involves the use of your image. This interference has to fulfil certain criteria in order to be a lawful limitation of your right to private life.
Has your image been used lawfully?
See the questions below to evaluate whether your image has been used lawfully and whether your privacy has been sufficiently respected. If, in your situation, your answer to one of these questions is negative, your privacy may have been violated. In such a case, you have the right to complain. Read more about how to complain.
The use of your image should have a basis in law. For example, according to the Biometric Data Processing Act, an image of a suspected, detained and convicted person can be taken and stored in the Biometric Data Processing System. In the context of the publication of photos, as stipulated in the Media Act, the media are entitled to publish information of general interest, including photos of private individuals as well.
If the use of your image is not permitted by law, your right to private life may be violated. There is no need then to examine the other questions.
The use of your image has to be aimed at the protection of other legitimate interests. These legitimate interests may, for example, be:
- your identification for state institutions and private entities
- press and media freedom
- other persons’ right to information
- freedom of art
- prevention, investigation and prosecution of crime
- combating recidivism
- protection of national security etc.
If the use of your photo does not serve a legitimate aim, the action taken is not legal and your right to private life may be violated. There is no further need to examine the necessity and proportionality of the use of your image.
The use of your image should be necessary and suitable for the achievement of the legitimate aim. The information gathered has to be important and relevant to achieve the aim of the use of image. Additionally, no other alternative and less restrictive methods should be available to achieve the legitimate aim.
Both competing interests – your right to private life and the legitimate interests of the state or other persons - have to be balanced against each other, and a fair balance must be found. There have to be sufficient arguments why the interests of others outweighed your rights and the other way around in the particular case.
The following aspects should be assessed within the balancing process:
(a) The method of taking the photo and the circumstances in which it was done
Have you given your consent to the taking and/or publishing of your image? According to the Criminal Procedure Act, the publishing of the image of a suspected and detained person, victim or witness without his or her consent is prohibited, unless it is required for the identification of the suspect.
(b) Status of the person
Are you a private individual or a public person? In the latter case, the interests of society to be informed about your involvement in criminal proceedings has greater weight, and thus the level of protection of your privacy is lower.
(c) Nature of the crime
What is the nature of the crime? If it is of a large-scale or otherwise affects a large section of society, for example, a murder or tax evasion by a big company, it may be considered to be of public interest. In such a case, the level of protection of your privacy is lower.
(d) Prior conduct of the person photographed
Have you previously revealed private information and photos to the press? In such a case, you have showed a positive attitude towards having your private life discussed in the media and thus the level of protection of your private life may be lower. However, previous cooperation with the media in the context of crime does not automatically limit the level of the protection of your privacy.
(e) Content, form and consequences of the photo’s publication
Were you portrayed in the picture in a particularly intrusive way, for example, in a moment of despair? Has the publication caused you emotional distress or some other kind of harm? If so, your right to private life has been especially severely affected.
How popular is the newspaper or website in which the photo was published? A huge target audience means that the level of your privacy has been restricted to a greater extent.
(f) Connection between the article and photo
What is the connection between the contents of the report and the photo, if the image was published along with the article? Was the accompanying text correct and complete? Both the publication of the image and the article has to be of public interest and provide correct, reliable information, and not be taken out of context. Whether the publication of the image has damaged your honour, dignity and reputation should also be examined, as defamation in the media is considered to be a criminal offence.