Deepfakes and the right to one’s own image: How you can protect yourself

A group photo on Instagram, a photo of an employee at a company party, a video manipulated using AI: Such situations are commonplace today, and the legal issues they raise are anything but trivial. Every person has the right to determine what happens to their image, whether it be a photograph, video or digital representation. This so-called right to one’s own image is not a matter of course, but a legally protected asset that is firmly enshrined in Swiss personality rights. Anyone who uses, exploits or disseminates another person’s image without their consent is, in principle, acting unlawfully. The Swiss legal system offers a multi-layered protection system through Art. 28 of the Swiss Civil Code (CC), Art. 179^quater of the Swiss Criminal Code (SCC) and the revised Data Protection Act, although the limits of this system are tested daily in the digital sphere.

Civil law: Article 28 of the Swiss Civil Code as the basis

Article 28 of the Swiss Civil Code forms the legal basis for the protection of personal privacy under civil law in Switzerland. This article grants any person whose personal rights have been unlawfully infringed the right to seek judicial protection against all those involved in the infringement. The right to one’s own image gives concrete form to this protection: it gives every person the power to decide for themselves whether an image may be taken, how it may be depicted and in what context it may be distributed.

However, not every intrusion is unlawful. The law recognises three grounds for justification which, in exceptional cases, permit an infringement: the express or implied consent of the data subject, an overriding private or public interest, and a specific statutory ground for justification. These grounds must, however, be applied restrictively, and the burden of proof lies with the party invoking them.

Examples relating to the principle of consent

Whether consent is required always depends on the context of the photograph and the way it is to be used.

• In public places, taking a photograph is generally permitted as long as the person appears only incidentally and is not identifiable. As soon as they are recognisably in the foreground or the image is to be used commercially, the consent of the person concerned is mandatory.
• In private places, such as homes or offices, there is a higher level of privacy protection, so that, in the absence of consent, a breach is generally presumed to have occurred.
• Consent is essential when publishing content on social media. The wider the reach of the content, the more serious the infringement; under Article 28a of the Swiss Civil Code (CC) and the Data Protection Act (FADP), the data subject may demand that the content be removed.
• AI-generated images and deepfakes are treated as equivalent to actual photographs in legal terms, provided that an identifiable person is depicted.
• The commercial use of an image, for example in advertising, always requires express consent covering the specific use. General or blanket consent is not sufficient.
• In the case of press reports on events of public interest, consent may exceptionally be dispensed with, provided that the use of the image is necessary for the reporting. Subsequent misuse is not covered by this.

Overview of civil law remedies

Article 28a of the Swiss Civil Code provides the injured party with civil remedies. If the infringement is still ongoing, the injured party may bring an action for a prohibitory injunction (Article 28a para. 1 no. 1 of the Swiss Civil Code) and may also seek the removal of an infringement that has already occurred (Article 28a para.1 no. 2 of the Swiss Civil Code). If the infringement has already ceased, there may nevertheless be a legitimate interest in having the unlawfulness established by the court through an action for a recognition of a claim (Art. 28a para. 1 no. 3 of the Swiss Civil Code). Finally, the affected person may, under certain circumstances, be entitled to bring an action for damages and satisfaction.

With regard to the right to one’s own image, swift action is required in most cases. An image once published on the internet can go viral within a matter of hours; any delay may exacerbate the damage. The Swiss Civil Procedure Code takes this circumstance into account and, pursuant to Art. 261 et seq. of the Swiss Civil Procedure Code, allows for urgent precautionary measure to be sought.

Federal Act on Data Protection (FADP)

The FADP also applies to the right to one’s own image: any image that enables the identification of a natural person constitutes personal data within the meaning of Article 5 let. a of the FADP. Anyone who processes such an image (e.g. collects, archives, uses, alters, discloses or destroys it) must comply with the legal principles.

The principle of lawfulness under Art. 6 para. 1 of the FADP requires that all processing be based on a legal basis, an overriding interest or the explicit consent of the data subject. The principle of proportionality under Art. 6 para. 2 of the FADP limits the amount of data to what is actually necessary for the intended purpose. The principle of purpose limitation under Art. 6 para. 3 of the FADP ensures that data may only be used for the purpose for which it was originally collected; any subsequent misuse is prohibited. Finally, Art. 6 para. 5 of the FADP requires that data be kept accurate and, where necessary, up to date. The grounds for justification under federal data protection law correspond in principle to those relating to the protection of personal privacy under Article 31 of the FADP.

Criminal law: Article 179^quater of the Criminal Code

In addition to civil law remedies, Swiss law also provides for criminal law remedies. Article 179^quater of the Swiss Criminal Code makes it a criminal offence to infringe upon a person’s privacy or private sphere using recording devices. A person commits a criminal offence if they make a recording in a non-public setting without the consent of the person concerned, or subsequently make such a recording available to third parties or disseminate it to the general public. Prosecution requires a criminal complaint to be filed.

Conclusion

Swiss law provides robust, multi-layered protection of the right to one’s own image under civil, data protection and criminal law. However, the legal situation is complex: it always depends on the specific context, the nature of the use and the individuals involved. Added to this are the particular challenges of the digital space, where images can be disseminated globally in a matter of seconds and perpetrators are often difficult to trace. Anyone who discovers that their image is being used unlawfully should seek legal advice at an early stage. Only a legal assessment tailored to the individual case can provide the necessary clarity and avoid unnecessary risks.