Rights concerning the use of photographs on the internet
Question
We published images on our website that we found via Google. We have now received a warning from lawyers in Germany. Do we have to take this seriously?
Answer
On Swiss websites, suspected copyright breaches often occur through the unauthorised use of images. For this reason, many warnings are issued owing to the use of such images on Swiss websites, with this also being especially true from Germany, where an actual warning industry has become established. Typical traps that lead to warnings include "image theft" via Google or Wikipedia, the violation of license conditions for "free" or "license-free" images and the online publication of presentations or association magazines with images.
In the case of the images for which the warnings are issued, it is often questionable whether they are protected by copyright in Switzerland. The absence of protection in Switzerland does not mean, however, that it is not possible to receive warnings from Germany. In cases of doubt, a court must rule on the matter. In each individual case, it is therefore essential to carefully check how to respond correctly to such a warning.
Should you respond incorrectly, you may damage your own legal position. In (almost) every case, the wrong response is to simply dispose of such warnings as waste paper. Nor is it usually possible to settle such warnings by issuing an apology to the opposing lawyer. It also doesn't help to insult the opposing lawyer.
Recommendations from the lawyer Martin Steiger on the correct way to proceed upon receiving warnings
Question
Our association now has a Facebook account. To make the page attractive, we want to make photos of our activities available within the network. In some cases, easily recognisable individuals are shown. Does their permission need to be requested? After all, the images on our Facebook page can only be viewed by "friends".
Answer
Photos are classified as sensitive personal data and, generally speaking, may only be used with the consent of the individuals shown in them. Even if you are able to restrict access on Facebook, it is nevertheless an open medium whose appeal lies in precisely the fact that more and more people gain more and more insights. Furthermore, the association is interested in having as many "friends" as possible.
I therefore advise against publishing any photos without first obtaining the consent of the affected individuals. Sending an enquiry in this regard to association members also provides the opportunity to get in contact with them.
As a rule, images should be used in which people are only recognisable to a limited extent or as part of a crowd. Furthermore, photos should not be noted with the names of the people who appear in them and no images should be used that encroach on the privacy of the people shown in them or that allow for conclusions to be drawn about their religious or political views, show the consumption of drugs or criminal activities, document the receipt of social welfare, etc.
It goes without saying that images should be deleted upon the request of the people they show.
