Photography rules: Spain, Switzerland, Germany have specifics
TL;DR
- Germany, Switzerland and Spain each protect a person's right to their own image, and each draws the line at a different point in the process.
- German law regulates the sharing. Section 22 of the Kunsturhebergesetz needs consent to distribute or publicly display a portrait, not to take one.
- Switzerland counts a photo as personal data the moment somebody in it is recognisable, and a public-place shot must be deleted if that person asks.
- Spain counts the capture itself as an intrusion under article 7.5 of Ley Orgánica 1/1982, and presumes the harm once the intrusion is shown.
Contents
The rule
In Germany, Switzerland and Spain the person in your frame holds a right in that image. Taking the photo and sharing the photo are two different acts, and each country draws its line at a different point.
Why this rule exists
Germany draws the line at sharing. Section 22 of the Kunsturhebergesetz dates to 1907 and runs to one sentence. Portraits may only be disseminated or publicly displayed with the consent of the person depicted. Section 23 lifts that for figures of contemporary history, for people who appear as incidental accessory to a place, and for participants in assemblies and processions. Pressing the shutter on a public street is not the regulated act. Putting the file on a feed is.
Switzerland draws it at recognisability. The federal data-protection commissioner treats a photo as personal data the moment somebody in it is recognisable, and wants consent before publication. Open photography in a public place, where the people are not the main subject, needs no consent. The condition attached is small and absolute: if the person asks you to delete it, you delete it, whether they ask that minute or a year later.
Spain draws it at the shutter. Article 7.5 of Ley Orgánica 1/1982 goes further. Capturing, reproducing or publishing a person's image is an illegitimate intrusion in itself. Article 8.2 lets you off for someone holding public office or public notoriety at a public act. It also covers a person who appears merely as an accessory to a public event.
What happens if you don't follow it
Immediate. Somebody asks you to stop, or to delete. In Switzerland, honouring that request is the whole remedy for a public-place photo, so it ends there.
Legal. Spain does not make the person prove they were harmed. Article 9.3 presumes the damage once the intrusion is shown, the claim reaches moral damage, and the four-year clock runs from when they could have sued.
Practical. Children carry a stricter answer. Spain wants a minor's consent in writing from the legal representative; Switzerland wants a parent or guardian before publication.
Social. None of this is aimed at your holiday album. It is aimed at the stranger who becomes content.
Quick reference
- One person as the subject: ask first, in all three countries. That is where the weight sits.
- A wide shot where nobody is the subject is the safest photograph you can take.
- Delete on request in Switzerland. The rule assumes you will, which is why it asks so little else.
- In Spain the taking is the act, not only the upload. Lower the camera rather than just skipping the post.
- Germany's exceptions cover public figures, incidental bystanders and public assemblies. A stranger who caught your eye is none of those.
- Minors: get the parent or guardian, in writing where you can.
- Be the traveller who lowers the camera first and asks second. It costs you one photograph.
Quick check
1. You take a wide shot of a busy square in Berlin. One stranger's face is clearly readable in the middle of it. You want to post it. What does German law actually turn on?
Select an answer.
2. At a viewpoint in Lucerne you photograph the lake. A family is in the frame but is not the point of the picture. One of them walks over and asks you to delete it. What does Swiss guidance expect?
Select an answer.